Opinion
DOCKET NO. A-5297-08T2
05-22-2012
IN THE MATTER OF THE CIVIL COMMITMENT OF J.E. SVP-508-08.
Joseph E. Krakora, Public Defender, attorney for appellant J.E. (Lewis P. Sengstacke, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-508-08.
Joseph E. Krakora, Public Defender, attorney for appellant J.E. (Lewis P. Sengstacke, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
J.E. appeals from the June 30, 2009 order granting the Attorney General's petition for involuntary civil commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38, following the completion of J.E.'s sentence of five years in prison with two and one-half years of parole ineligibility as a result of his guilty plea to second-degree luring or enticing a child, N.J.S.A. 2C:13-16; third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4a; and a fourth-degree firearms offense, N.J.S.A. 2C:58-3c(1). After reviewing the contentions advanced on appeal in light of the facts and relevant law, we affirm.
J.E.'s offense history consists of seventeen adult arrests, resulting in convictions for eight offenses. His convictions include three counts of distribution of controlled dangerous substances and one count each of aggravated sexual assault, aggravated assault, criminal trespass, criminal sexual contact, and simple assault.
An Internet sting resulted in J.E.'s most recent convictions. A Passaic County Sheriff's officer posing as a twelve-year-old girl communicated with J.E. in explicit sexual language over the Internet and by telephone. Believing that he was communicating with a girl under the age of thirteen, J.E. arranged a meeting with her for the purpose of engaging in sexual relations.
After arresting J.E., the police searched his home and seized an unlicensed twelve-gauge shotgun, bags containing suspected marijuana and drug paraphernalia.
In 1978, J.E., who was seventeen years old at the time, was adjudicated a delinquent for forcibly engaging in sexual intercourse with a thirteen-year-old female acquaintance. He was sentenced to one year of probation.
In 1980, J.E. was arrested and charged with aggravated sexual assault, sexual assault, and robbery of a female acquaintance. A jury convicted J.E. of aggravated sexual assault in 1981, but we reversed the conviction and remanded for a new trial. After a re-trial in 1983, a jury convicted him of sexual assault.
After the 1981 conviction, a doctor at the Adult Diagnostic and Treatment Center who examined him noted that J.E. "displayed a severe deficit in social judgment along with a dangerous lack of regard for the consequences of his actions." The examiner further opined that J.E.'s personality contained a "potent narcissistic element," as evidenced by his comments that "[the victim] was 'town property' and[,] therefore, at his sexual disposal on the basis of his whim." The examiner stressed that "[t]he strongly-implied, anti-social themes in [J.E.'s] test responses are generally associated with the probability of further criminal behavior in the near future, and therefore, he is a danger to those around him." The examiner determined, however, that there was no clinical evidence to show that J.E.'s sexual assault was "part of a repetitive and compulsive pattern of behavior[.]" J.E. served his sentence and was returned to prison in September 1986 when he violated his parole. He was released in November 1989.
Four months later, in March 1990, J.E. assaulted a pregnant acquaintance in her apartment while her infant child was sleeping nearby. The victim managed to deter J.E. from further assaults by biting him. A jury convicted J.E. of forcible sexual contact, N.J.S.A. 2C:14-2c, and simple assault, N.J.S.A. 2C:12-1a(1). J.E. was sentenced to fifteen months in prison for the criminal sexual contact conviction and six months for simple assault. He was released on April 25, 1992.
In 2000, J.E. was acquitted at trial on charges he sexually assaulted a thirteen-year-old girl on numerous occasions.
In February 2005, police arrested J.E. for arranging a meeting with the officer posing as a twelve-year-old girl with the intent to engage in sexual relations.
In support of its petition under the SVPA, the State presented the testimony of Dr. Pogos Voskanian, a psychiatrist. Three psychologists testified on J.E.'s behalf: Dr. Brian Friedman, Dr. Jeffrey Singer, and Dr. Timothy Foley.
Dr. Voskanian's testimony began with a review of J.E.'s criminal sexual offenses. This review included a mention of the 2000 arrest and acquittal. Dr. Voskanian admitted to considering it in formulating his report, but clarified that it did not influence his opinions or recommendation on the matter.
Dr. Voskanian first discussed the 1978 offense. He stressed the significance of J.E.'s young age when he committed the offense. He opined that this "early onset of sexually acting out and violent behaviors" generally predicts a poor prognosis.
With respect to the 1980 offense, Dr. Voskanian determined that its close temporal proximity to the 1978 offense was evidence that (1) J.E. has a strong urge to commit sexual offenses; (2) he disregards the law; and (3) he is unable to appreciate the consequences of his actions. Dr. Voskanian also noted that J.E. was on probation for drug and larceny offenses when he committed the 1980 offense, which he believes "points to sexual pathology . . . [a] need to violate someone . . . [it] points to a very strong urge to commit a similar offense." Moreover, he testified that J.E. denied all wrongdoing and claimed the sex was consensual.
As to the 1990 offense, Dr. Voskanian pointed out its similarities to the 1980 offense, most notably the significant degree of force and violence used against the victim. The doctor testified that J.E. again denied all wrongdoing and claimed the intimacy was consensual.
Dr. Voskanian's testimony also addressed the 2000 arrest, but only to note the age of the alleged victim and the short time between his acquittal on these charges and his arrest in February 2005.
Dr. Voskanian next expressed his determination concerning the 2005 arrest and J.E.'s version of events. Dr. Voskanian found it significant that J.E. had historically pleaded not guilty to the earlier sexual charges against him, but pled guilty to the 2005 luring offense. This was the first time that J.E. was forced to acknowledge the strength of the State's case against him and forego a trial. Despite pleading guilty, Dr. Voskanian explained that J.E. maintained his innocence and claimed to make sexual requests only after he had surmised that he was communicating with an adult who was merely playing the role of a twelve-year-old girl.
Dr. Voskanian also discussed J.E.'s explanation of events on the day of his arrest in 2005. J.E. asserted that he had no intention of meeting anybody and suspected the meeting was a set-up, but drove forty minutes from his house to investigate the circumstances.
Dr. Voskanian opined that driving such a distance while motivated only by curiosity did not correspond with reality, especially in light of the "sexual conversations, and the [I]nternet communications, and sexual requests that took place prior to the ride." Dr. Voskanian noted further that J.E. is an intelligent man who had only recently completed a trial by jury based on allegations that he sexually assaulted a thirteen-year-old girl. In light of these facts and J.E.'s long history of sexual violence, Dr. Voskanian found that J.E.'s decision to go to the parking lot, combined with the uncertainty surrounding the identity of who was actually waiting for him, whether it be a twelve-year-old girl or the police, evidenced "a significant pathology, at least with impulse control issues," and "very poor judgment."
The doctor voiced his disbelief in J.E.'s contention that he did not intend to have sex with a twelve-year-old girl on the day of his arrest. The doctor attributed this finding to the fact that J.E. had broached the subject of sex in his initial Internet chat and that he was at least aware of the possibility of police involvement. "It's either a twelve[-]year-old girl, and he got lucky, as he was hoping . . . or it's a policeman. So he's thinking I may get lucky and I may not. [The] [u]rge is irresistible." Under either scenario, "[J.E. was] not willing to give up the fantasy of getting [a] twelve[-]year-old."
Based on his interview with J.E. and his review of the record, Dr. Voskanian testified that J.E. showed no insight into his sexual offending and had never received appropriate treatment as a sex offender. He further noted that J.E. never admitted to any wrongdoing and thus showed no remorse for his actions or empathy towards his victims. Moreover, J.E.'s admitted alcohol abuse only further served to intensify his "aggression and inappropriate expression of sexuality."
He diagnosed J.E. with paraphilia NOS (not otherwise specified) based on a history of sexually violent offenses and J.E.'s failure to amend his behavior, even after numerous arrests, convictions, and jail time. He also diagnosed J.E. as having an antisocial personality disorder based on J.E.'s "significant . . . criminal history, lack of remorse, lack of empathy, [and] disregard for societal rules," which predisposed him to sexual violence.
With respect to the issue of J.E.'s likelihood to reoffend, Dr. Voskanian categorized J.E. as "high risk." In reaching this determination, he focused on J.E.'s history of sexual offenses, his lack of treatment, his disregard for the law and for societal norms, his thrill-seeking behavior, and his lack of remorse, empathy, and impulse control.
Psychologist Dr. Friedman testified on behalf of J.E. Dr. Friedman testified that parole supervision for life (PSL) would be a significant deterrent to J.E. because of the nature of the luring offense, in that it requires a "period of grooming." Thus, in his view, the fact that "[p]arole would have the opportunity to dump [J.E.'s] computer" and "examine what he's doing on the Internet" cautioned against civil commitment. As his testimony progressed, however, Dr. Friedman conceded that J.E.'s criminal history showed that he was also capable of impulsive sexual violence as well as luring behavior.
Dr. Friedman opined that J.E.'s substance abuse was a contributing factor to his previous sexual offenses because of J.E.'s tendency to "act[] out in an aggressive fashion, including sexually aggressive fashion, if he's using." Dr. Friedman explained that PSL, and the rigorous substance testing regime it imposed, would effectively prevent J.E. from "sexually acting out."
Dr. Friedman admitted, however, that he did not know the quality or degree of supervision J.E. would receive under PSL, how often he would be tested for drugs or alcohol, or how frequently parole would make unannounced visits. He admitted that without PSL, he would find that J.E. would be a significant to high risk to reoffend and that civil commitment would be appropriate.
With respect to the day of J.E.'s most recent arrest, Dr. Friedman stated that J.E. indicated he wasn't drunk and, thus, alcohol played no role in his decision to pursue the rendezvous.
He further acknowledged that he did not believe J.E.'s version of the circumstances surrounding his numerous convictions, but found he was only a moderate risk to reoffend sexually while on PSL. He also noted J.E.'s participation in numerous prison treatment programs.
On cross-examination, Dr. Friedman stated he believed that J.E. went to the parking lot with the intent to have sex with a twelve-year-old girl. He further testified that J.E. showed no insight with respect to that offense, denying any wrongdoing.
Dr. Friedman acknowledged his concern that J.E. would not comply with PSL in light of his "poor track record." Nevertheless, Dr. Friedman partially attributed J.E.'s prior failures to comply to his youth, and expressed his hope that J.E.'s recent experience with jail time and his knowledge of the possible consequences would encourage him to perform better under PSL.
He further acknowledged that in spite of J.E.'s apparent ability to control his behavior at times, "[he] is an antisocial and sexually indiscriminate individual who has no regard for the rights or well-being of those around him, and without treatment, he is unlikely to alter his behavior."
Psychologist Dr. Singer also testified on behalf of J.E. He estimated that he had evaluated approximately fifty individuals charged with Internet luring offenses. Like Dr. Friedman, he diagnosed J.E. with antisocial personality disorder and polysubstance abuse, but found no evidence of a sexual pathology. He determined PSL was a "positive protective factor" that would likely "help keep him on the straight and narrow." Irrespective of PSL, however, Dr. Singer determined J.E. to be "less than likely to [sexually] reoffend."
With respect to the 2005 luring offense, Dr. Singer accepted J.E.'s contention that he was motivated only by curiosity when he went to the Kohl's parking lot and never intended to have sex with a twelve-year-old girl. He based this determination on his experience with Internet luring cases, in which the offenders typically brought with them toys, props, condoms, and other items. He acknowledged, however, that a reasonable person could review the record concerning the 2005 luring offense and conclude that J.E. intended to engage in sex with a twelve-year-old girl. Dr. Singer admitted that he would likely not be testifying on J.E.'s behalf if J.E. was, in fact, motivated by such intent on the day of his arrest.
Dr. Foley also testified on J.E.'s behalf. He, too, diagnosed J.E. with antisocial personality disorder and polysubstance dependence. He recognized the difficulty in ascertaining whether J.E. intended to have sex with a twelve-year-old girl on the day of his arrest, but testified to his firm disbelief of J.E.'s claim that he went to the parking lot that day only to see if police were there. Nevertheless, he noted there were fifteen years (1990-2005) between J.E's sexually violent offenses, which, in his view, indicated that J.E.'s case did not meet the threshold for civil commitment.
Dr. Foley further testified that, in his professional opinion, J.E. was not highly likely to commit sexually violent acts if released. He commented on PSL's potential deterrent effect on J.E.'s persistent use of drugs and alcohol. He further opined that J.E.'s compliance with the terms of PSL would be an "optimistic indicator that he can [also] be compliant with resisting the urge to commit a sexually violent act."
During their testimony, each of the psychologists testifying on J.E.'s behalf discussed the Static-99 actuarial predictor of reoffense. Dr. Voskanian, the lone psychiatrist, did not discuss the Static-99 during his testimony.
For a more thorough explanation of the Static-99, see http://www.static99.org. See also In Re Civil Commitment of R.S., 173 N.J. 134, 137 (2002) (noting that experts may rely on actuarial data and that the court may treat actuarial data as a factor when conducting its factfinding function).
Dr. Friedman explained that the Static-99 is the "baseline starting point for any risk assessment." He explained that the predictor begins with a baseline estimate, which assumes that the offender is a high risk to commit future sex crimes, and then assesses static factors specific to the individual's situation that either enhance or diminish that risk level. He noted that certain factors, such as J.E.'s antisocial personality disorder and his prior failures with probation, supported actuarial estimates of high risk. He also discussed factors that suggest a lower level of risk, such as J.E.'s participation in various types of treatment while incarcerated and the deterrent effect of PSL on his substance abuse.
For a list of the ten factors, see the Static-99 Coding Rules at http://www.static99.org.
Dr. Friedman testified that J.E. scored a seven, which suggests a high risk. He further testified that the Static-99 "often underestimates risk because . . . not all offenses get reported." He determined, however, that in this case, the Static-99 likely overestimated J.E.'s level of risk because the tool's guidelines on how to assess a luring/enticing conviction are still somewhat unclear.
Dr. Foley also conducted a Static-99 and arrived at a score of seven for J.E. He, too, opined that the tool "over predicts risk" because of unclear testing guidelines and mentioned J.E.'s middle-age as mitigating his risk for sexual re-offense.
Dr. Friedman explicitly rejected J.E.'s age as a significant factor in reducing his risk level.
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Dr. Singer testified that he did not score a Static-99 for J.E., that the tool was "literally a work in progress," and that "[s]tatic actuarial scores are not particularly accurate . . . ." He stated that he used "structured professional judgment" to reach his assessment, which included the use of "predetermined, preselected risk factors" for guidance.
J.E. raises the following issues on appeal:
POINT I: THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.E. IS HIGHLY LIKELY TO COMMIT A SEX OFFENSE IF RELEASED TO THE COMMUNITY.
POINT IA: THE EVIDENCE GIVEN BY THE RESPONDENT'S EXPERTS WAS SOLIDLY GROUNDED IN ACTUARIAL ANALYSIS, LEARNED AUTHORITIES AND PS[]YCHOLOGICAL TESTING. THE EVIDENCE GIVEN BY THE STATE'S EXPERT WAS SIMPLY UNGUIDED CLINICAL OPINION AND SHOULD HAVE BEEN REJECTED.
POINT [I]B: THE COURT BELOW ERRED IN ITS CRUCIAL FACTUAL FINDING THAT THE PREDICATE OFFENSE DID NOT INVOLVE ALCOHOL AND DRUG
ABUSE. AS A RESULT, IT ERRONEOUSLY REJECTED THE RESPONDENT'S EXPERTS' CONCLUSIONS THAT J.E. WOULD PRESENT LESS THAN A HIGH LIKELIHOOD OF REOFFENSE IF RELEASED TO THE COMMUNITY UNDER PSL.
J.E. raises the following issues in his pro se supplemental brief:
POINT I: JUDGE [] ABUSED HIS LEGAL DISCRETION BY HOLDING THE CONDUCT OF MERE THOUGHTS, NON-THREATENING WORDS TO A FICTITIOUS VICTIM, THE IMPOSSIBILITY OF ANY SORT OF CONTACT, SEXUAL OR NON-SEXUAL, AN OFFENSE CULMINATING FROM AN "INTERNET STING[,]" UTILIZED BY THE STATE AS A PREDICATE OFFENSE, AND QUALIFYING SAID OFFENSE AS AN OFFENSE ENCOMPASSED UNDER THE
SEXUALLY VIOLENT PREDATOR ACT N.J.S.A. 30:4-27(b).
POINT II: JUDGE [] ERRED IN REJECTING THE THREE FAVORABLE OPINIONS OF DRS. FRIEDMAN, FOLEY AND SINGER THAT COMMITMENT IS NOT WARRANTED AS APPELLANT IS DIAGNOSED AT A LOW-MODERATE RISK OF REOFFENSE.
(A.) JUDGE []'S DECISION TO COMMIT APPELLANT IS FLAWED DUE TO HIS CONCLUSION BEING BASED UPON ERRONEOUS PREJUDICIAL HEARSAY STATEMENTS TESTIFIED TO BY DR. VOSKANIAN.
(B.) THE STATE FAILED TO PROVE THAT THE APPELLANT IS "HIGHLY LIKELY" TO REOFFEND AND THAT THE GPS ELECTRONIC ANKLE MONITORING PROGRAM WOULD NOT MITIGATE APPELLANT[']S RISK OF REOFFENSE TO A LEVEL OF LOW-MODERATE, AND COULD BE RELEASED UNDER SAID PROGRAM, N.J.S.A. 30:4-123.91.
POINT III: N.J.S.A. 2C:47-3(2) AS APPLIED TO "COMPULSIVE" SEX OFFENDERS NOT AMEN[]ABLE TO TREATMENT AND TRANSFERRED TO PRISON AND THOSE "NON-COMPULSIVE" SEX OFFENDERS AMEN[]ABLE TO TREATMENT, BUT DENIED TRANSFER
TO ADULT DIAGNOSTIC CENTER CONSTITUTES DELIBERATE INDIFFERENCE AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS, WHERE SUCH CLASSIFICATION IS ARBITRARY AND DENIES EQUAL PROTECTION.
I
The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25), cert. denied, J.M.B. v. N.J., ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as:
a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and 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."The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).
[N.J.S.A. 30:4-27.26.]
Involuntary commitment requires the State to prove by clear and convincing evidence "that the individual poses a threat to the health and safety of others" because of a "serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend" in the reasonably foreseeable future. Id. at 132; see In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33 (emphasis in original).
"Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)); see In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding that a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder") (citing W.Z., supra, 173 N.J. at 127).
In reviewing a commitment under the SVPA, appellate review is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have recognized that "'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35-36 (App. Div. 2007) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630. A reviewing court must "canvas the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).
II
J.E. maintains that the judge was obligated to afford more weight to the actuarial assessments offered by his experts than to the clinical judgment of the State's expert psychiatrist. This position was rejected by the Supreme Court when it stated that a trial court should "regard the actuarial assessment information . . . as simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA." In re R.S., 173 N.J. 134, 137 (2002) (citation omitted). J.E.'s two experts who used the actuarial Static-99 test, Drs. Friedman and Foley, testified that J.E. scored a seven, indicating that J.E. was a high risk to reoffend. Both psychologists explained their reasons for disagreeing with the test results. J.E.'s third expert testified that the test was not sufficiently trustworthy to be helpful. Thus, none of J.E.'s experts accepted the actuarial test results. The trial judge placed no weight on the Static-99 test results, agreeing in that regard with all of the experts. The trial judge explained thoroughly his reasons for finding that the State had met its burden of proof.
J.E. also contends that the judge erred in his crucial factfinding that the predicate offense did not involve alcohol and drug abuse and, therefore, PSL would not be effective. J.E. points to Dr. Voskanian's testimony, in which the doctor states that J.E. admitted to consuming about one-half case of beer per day at the time of his arrest. Moreover, he notes the unanimous opinion of the experts that J.E. abused alcohol and marijuana. Dr. Friedman, however, testified that J.E. unambiguously stated that he was not using alcohol on the day of his arrest. Furthermore, Dr. Friedman's report states that "[J.E.] indicated that he does not believe that alcohol use played a role in the 2005 crime[.]" The record contained no evidence that police smelled alcohol on J.E.'s breath that day or that he was cited for driving while intoxicated. Thus, the judge's factfindings are supported by substantial credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
J.E. further argues that the judge improperly rejected PSL as an important mitigating factor in reducing J.E.'s risk of reoffending. Only Dr. Friedman unequivocally cited PSL as the reason J.E. would not present a high risk of reoffending if released. Dr. Singer determined that PSL was merely a "positive protective factor" to "help keep him on the straight and narrow." Dr. Singer's opinion that J.E. was not highly likely to reoffend was informed primarily by J.E.'s age, and by a determination that J.E. did not intend to have sex with a twelve-year-old on the day of his arrest. Importantly, the judge explicitly found that J.E. did intend to have sexual relations with a child when arrested.
Although Dr. Foley noted PSL's potential deterrent effect on J.E.'s drug and alcohol use, his opinion that J.E. did not present a high risk of reoffending was grounded more in the fact that fifteen years separated J.E.'s convictions for sexual violent offenses. The judge observed that J.E. had gone long stretches between sexually violent offenses in the past, but also found that even with PSL, J.E. would be highly likely to reoffend, especially given that he was not under the influence of any substance at the time of the luring offense.
III
Appellant next contends that the charges to which he pled guilty in 2005 involve neither sexual contact nor an actual victim and, therefore, do not qualify as sexually violent offenses pursuant to the SVPA. Appellant did not previously assert that the 2005 offenses to which he pled guilty do not fall within the statute's purview. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973); Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Nonetheless, we will briefly address the issue.
Under N.J.S.A. 30:4-27.26(b), one definition of a "sexually violent offense" is:
(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.
In addressing subsection (b) of the provision, the Supreme Court has focused on the legislative history behind the enactment of the SVPA. J.M.B., supra, 197 N.J. at 572-75. The Court noted the SVPA's paramount concern "to protect society through the 'commitment of those sexually violent predators who pose a danger to others should they be returned to society.'" Id. at 574 (quoting N.J.S.A. 30:4-27.25(c)). Thus, in addition to the enumerated "sexually violent offenses" contained in subsection (a), "the Legislature [] included the authorization in subsection (b) for a court to make its own 'finding on the record, based on the circumstances of the case,' that a 'person's offense should be considered a sexually violent offense.'" Id. at 573 (quoting N.J.S.A. 30:4-27.26(b)).
Subsection (b) authorizes a court "to identify a person as a sexually violent predator even when he or she has not been convicted of an offense that fits precisely, or with substantial equivalence, the elements of the crimes encompassed in subsection (a)'s listing." Id. at 574. "'[T]he demonstrated conduct must be in the nature of the type of sexual offenses enumerated'" in subsection (a). Id. at 576 (quoting In re Commitment of J.P., 393 N.J. Super. 7, 17 (App. Div. 2007)).
During his plea hearing, J.E. admitted to going to meet a child with the intention of engaging in sexual relations, behavior akin to sexual assault, which is a specific predicate offense enumerated in N.J.S.A. 30:4-27.26(a). J.E. was convicted in 1991 of criminal sexual contact, a crime specifically delineated in that same provision. The judge did not err in finding J.E.'s conviction fit within the category of sexually violent offenses described by the legislature in N.J.S.A. 30:4-27.26(b).
IV
J.E. contends that he was arbitrarily denied sex offender treatment at the Adult Diagnostic and Treatment Center (ADTC) as a "non-compulsive" offender pursuant to N.J.S.A. 2C:47-3(2), which, in his view, resulted in his civil commitment under the SVPA. He alleges that the disparate treatment under the Sex Offender Act of "compulsive" and "non compulsive" sex offenders violates the Eighth and Fourteenth Amendments of the United States Constitution. U.S. Const. amends. XIII and XIV. Our Supreme Court has rejected this argument. In re Civil Commitment of W.X.C, 204 N.J. 179, 195-202 (2010).
J.E.'s remaining arguments are without sufficient merit to require a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION