IN THE MATTER OF THE CIVIL COMMITMENT OF A.Y., SVP-545-09.
Submitted January 15, 2019
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. SVP-545-09.
E. Krakora, Public Defender, attorney for appellant A.Y.
(Susan Remis Silver, Assistant Deputy Public Defender, of
counsel and on the brief).
S. Grewal, Attorney General, attorney for respondent State of
New Jersey (Melissa H. Raksa, Assistant Attorney General, of
counsel; Victoria R. Ply, Deputy Attorney General, on the
Judges Fisher, Geiger and Firko.
A.Y. appeals from a Law Division judgment involuntarily
civilly committing him to the Special Treatment Unit (STU) as
a sexually violent predator pursuant to the Sexually Violent
Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After
reviewing the record in light of the contentions advanced on
appeal, we affirm.
involuntary civil commitment can follow service of a
sentence, or other criminal disposition, when the offender
"suffers from a mental abnormality or personality
disorder that makes the person likely to engage in acts of
sexual violence if not confined in a secure facility for
control, care and treatment." N.J.S.A. 30:4-27.26;
see also N.J.S.A. 30:4-27.25. To civilly commit an
individual as a sexually violent predator, the State must
establish three elements by clear and convincing evidence:
(1) that the individual has been convicted of a sexually
violent offense, [N.J.S.A. 30:4-27.26]; (2) that he suffers
from a mental abnormality or personality disorder,
ibid.; and (3) that as a result of his psychiatric
abnormality or disorder, "it is highly likely that the
individual will not control his or her sexually violent
behavior and will reoffend," In re Commitment of
W.Z., 173 N.J. 109, 130 (2002). Although the first two
elements derive directly from the statute, to comport with
substantive due process concerns, [the] Court interpreted the
third statutory element as requiring the State to show that a
person is "highly likely," not just
"likely," to sexually reoffend. Ibid.
[In re Civil Commitment of R.F., 217 N.J. 152, 173
order to be considered a sexually violent predator, an
individual must have committed a sexually violent offense.
N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually
violent offense. Ibid. With this legal framework in
mind, we will now consider the facts that led to A.Y.'s
commitment under the SVPA.
derive the facts from the trial record. A.Y. is now
thirty-nine years old. In February 2006, he pleaded guilty to
second-degree sexual assault, N.J.S.A. 2C:14-2(c). His
conviction was predicated on the following facts. On April
11, 2005, A.Y. went to the house of his former girlfriend,
N.B., who was home with her two-year-old son. A.Y. wanted to
stay the night and said he would leave at 5:00 a.m. the next
morning. N.B. allowed him to stay, and he slept on the couch.
When the alarm went off the next morning, N.B. told A.Y. it
was time to leave. A.Y. began touching her, ordered her to
remove her clothes, and refused to allow her to leave the
apartment. A.Y. demanded she hug and kiss him and became
violent when she resisted, stating he intended to make her
suffer the way she made him suffer.
N.B. picked up her son, A.Y. told her to put him down and
threatened to break the child's neck if she did not do
so. A.Y. forced N.B.'s legs open and performed oral sex
on her. He then forced N.B. to perform fellatio on him,
threatening to harm her if she refused and to break her neck
if she bit him. He then vaginally and anally penetrated her
despite her complaints of pain and demanded she suck the
fecal matter off his penis. While her son cried in another
room, A.Y. anally penetrated N.B. a second time. A.Y. then
told N.B. to stand at the foot of her son's bed and
vaginally penetrated her from behind. A.Y. told her he was
going to do this to her for the next forty-eight hours and
that he would hurt her son if she left or answered the door.
When A.Y. left to buy cigarettes, N.B. ran upstairs to a
friend's apartment and called the police.
to sentencing, A.Y. underwent a psychological evaluation at
the Adult Diagnostic Treatment Center in Avenel to determine
his eligibility for sentencing under the purview of the New
Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. In her
report, psychologist Donna LoBiondo, Ph.D., stated A.Y.'s
responses to the sexuality questionnaire included:
"Something I enjoy about being a male is . . . my
dominance over God's creation" and, "[t]he hard
thing about being a male is . . . the ultimate responsibility
of being the dominant member."
LoBiondo described A.Y.'s demeanor as "arrogant and
detached." He reported being diagnosed with Bipolar
Disorder with posttraumatic stress and depression. A.Y.
admitted he could be overly aggressive when upset, and that
there is "no limit" to his aggression when properly
provoked. He stated, "really most women are
prostitutes." A.Y. denied sexually assaulting N.B.,
claiming he "didn't do anything" and that the
sex "was consensual."
LoBiondo opined A.Y.'s "[o]verall clinical
impression is of a psychopathic and sadistic individual who
engages in aggression for his own gratification as well as
the humiliation of those he perceives as vulnerable."
Despite these findings, she concluded there was
"insufficient evidence that [A.Y.'s] criminal
behavior qualifies as repetitive and compulsive under the
statute. It is more likely that antisocial, sadistic and
narcissistic motivations drove his criminal sexual
behavior." He was found not eligible for sentencing
under the purview of the Sex Offender Act.
was sentenced to a five-year prison term, subject to an
eighty-five-percent period of parole ineligibility under the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, community
supervision for life, N.J.S.A. 2C:43-6.4, and the
requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to
October 15, 2006, while being detained on the sexual assault
charge, A.Y. forcibly sodomized a fellow inmate, penetrating
him repeatedly. He pleaded guilty to an accusation of
third-degree criminal restraint in circumstances exposing the
victim to risk of serious bodily injury, N.J.S.A. 2C:13-2(a),
and was sentenced to a concurrent three-year prison term.
did not file a direct appeal from either conviction or
sentence. His subsequent petition for post-conviction relief
(PCR) from the sexual assault conviction was denied. In an
unpublished opinion, we affirmed the denial of PCR.
2009, a psychological evaluation and risk assessment of A.Y.
was performed by Alicia Caputo, Ph.D., a psychologist. Her
report states A.Y. reported beginning counseling at age four
or five after witnessing the murder of his brother. He was
prescribed medication at age eight for hyperactivity and
because he "started exhibiting signs of violence toward
other kids." A.Y. was in and out of psychiatric
treatment as a teenager and was prescribed Paxil, Risperdal,
and other medications but refused to take them.
to his convictions in New Jersey, A.Y. was convicted of
arson, cruelty to animals, theft by unlawful taking, and
simple assault in Georgia. As to the arson and cruelty to
animals convictions, A.Y. reported to Dr. Caputo that he had
moved in with his girlfriend and invested much time and money
into the relationship, including buying all their furniture.
The relationship deteriorated and during a physical
altercation he had "probably choked her." His
girlfriend called the police and he was removed from the
residence. A.Y. came up with the idea to go over to her
residence "and burn it all up" because she had all
the furniture and would not give it back. He set his
girlfriend's residence on fire while she was not home.
Her dog and cat perished in the fire.
was treated for Posttraumatic Stress Disorder (PTSD) and
Bipolar Disorder and was prescribed Geodon, Vistaril, and
Zoloft while serving a prison term in Georgia from 2001 to
2004. While in prison he cut his wrist several times, stating
he was depressed but denied true suicidal intent.
his release from prison, A.Y. returned to New Jersey and
briefly participated in outpatient treatment and was
prescribed Paxil and Risperdal until his sexual assault
arrest. While incarcerated in jail, A.Y. participated in
mental health treatment and was prescribed Benadryl,
Depakote, and Risperdal but stopped taking these medications
in May 2006.
entered the State prison system in April 2007. After
reporting symptoms including sleep disturbance, anxiety,
depression, irritability, and mood swings, he was prescribed
Depakote, Risperdal, and Vistaril but was noted as being
erratically compliant with medication. At one point he
verbalized suicidal ideation. In April 2009, he returned to
outpatient treatment, and was diagnosed with Mood Disorder
Not Otherwise Specified (NOS) and Personality Disorder NOS.
He was prescribed Benadryl, Depakote, and Zoloft.
Caputo's report states A.Y.'s "presentation
throughout his incarceration has been described as angry,
antisocial, and sarcastic." He repeatedly disclosed
thoughts of violence, stabbing people, or otherwise
assaulting them if his demands were not met. "He also
described a constant state of underlying anger and a view
that relationships with people were 'only to get what I
want from them.'" During her interview of A.Y., he
described the criminal restraint offense, admitting he anally
penetrated his cell mate with a broomstick because his cell
mate was a child molester. When asked about the
appropriateness of his behavior, he responded,
"[t]hat's what he should get." This version
conflicts with A.Y.'s contention that he engaged in
consensual sex with his cell mate.
Caputo noted A.Y. underwent a parole evaluation by David
Gomberg, Ph.D., in January 2009, which included the use of
the Static-99 and MnSOST-R actuarial instruments to assess
his future sex offender risk. Dr. Gomberg's scoring of
the MnSOST-R and Static-99 placed A.Y. in the high risk
category on both instruments. Dr. Gomberg recommended A.Y. be
referred for civil commitment as a sexually violent predator.
Caputo also administered the MnSOST-R and Static-99 actuarial
instruments. She scored A.Y. a on the MnSOST-R, placing
him in the high risk category for sexual reoffending, and a 5
on the Static-99, placing him in the moderate-high risk
category for sexual reoffending.
Caputo concluded both of A.Y.'s offenses "involved
significant elements of violence." His sexual assault of
N.B. "involved elements of sadism and humiliation,"
as well as using threats of violence against her two-year-old
son. "More generally, [A.Y.] exhibited a significant
tendency to denigrate and objectify women." With regard
to his criminal restraint conviction, A.Y. "exhibited no
remorse and framed his sexual assault of the victim as
'just desserts' for the victim's alleged
pedophilia." Dr. Caputo stated A.Y. "exhibited no
empathy for either of ...