In re A.Y., DOCKET NO. A-5240-16T5

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: GEIGER, J.A.D.
• Citation: 203 A.3d 924,458 N.J.Super. 147
• Docket Number: DOCKET NO. A-5240-16T5
• Decision Date: 13 February 2019
• Parties: In the MATTER OF the CIVIL COMMITMENT OF A.Y., SVP-545-09.

458 N.J.Super. 147
203 A.3d 924

In the MATTER OF the CIVIL COMMITMENT OF A.Y., SVP-545-09.

DOCKET NO. A-5240-16T5

Superior Court of New Jersey, Appellate Division.

Submitted January 15, 2019
Decided February 13, 2019

Joseph E. Krakora, Public Defender, attorney for appellant A.Y. (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir 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 brief).

Before Judges Fisher, Geiger and Firko.

The opinion of the court was delivered by

GEIGER, J.A.D.

203 A.3d 928

458 N.J.Super. 154

Appellant 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.

An 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 [801 A.2d 205] (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, 85 A.3d 979 (2014).]

In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense.

458 N.J.Super. 155

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.

We 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.

When 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

203 A.3d 929

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.

Prior 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

458 N.J.Super. 156

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."

Dr. 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."

Dr. 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.

A.Y. 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 -23.

On 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.

A.Y. did not file a direct appeal from either conviction or sentence. His subsequent petition for post-conviction relief (PCR)

458 N.J.Super. 157

from the sexual assault conviction was denied. In an unpublished opinion, we affirmed the denial of PCR.

In 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

203 A.3d 930

Paxil, Risperdal, and other medications but refused to take them.

Prior 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.

A.Y. 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.

Upon 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.

458 N.J.Super. 158

A.Y. entered the State prison system in April 2007. After reporting symptoms including sleep disturbance, anxiety,...