SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
IMO Civil Commitment of J.M.B. (A-79-07)
Argued September 8, 2008 -- Decided February 23, 2009
LaVECCHIA, J., writing for a majority of the Court.
The New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, defines a “sexually violent predator” as a person who has been “convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense.” A “sexually violent offense” can be any offense specifically listed in the SPVA, N.J.S.A. 30:4-27.26(a) (subsection (a)); such offenses include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, certain kinds of kidnapping, and felony murder involving sexual assault. In addition, under N.J.S.A. 30:4-27.26(b) (subsection (b)) “any offense that, based on the circumstances of the case, the person’s offense should be considered a sexually violent offense.” The key issue in this appeal is whether J.M.B. was convicted of a sexually violent offense as defined under subsection (b).
J.M.B. was convicted of eight prior offenses, most of which involve patterned and unusual behavior in respect of his victims. In each case, he pleaded guilty and was sentenced to serve time in a correctional facility or was fined. In the first offense, (April 17, 1977), J.M.B admitted to picking up ten-year-old R.J., driving him to a wooded area, and attempting to tie him up. Although unsuccessful, J.M.B. caused R.J. to suffer rope burns. J.M.B. also admitted to picking up two other boys two hours later and driving them to his home, taking them to his bedroom and giving them marijuana and alcohol. He tied up one of the boy’s hands and feet. J.M.B. pleaded guilty to contributing to the delinquency of a minor, distribution of marijuana to a minor, and threatening to kill. He was sentenced to an indeterminate term at the Youth Reception and Correction Center, which was suspended and a year’s probation conditioned on continued psychiatric treatment.
The second incident, (October 7, 1981), J.M.B. offered a ride to fifteen-year-old E.H., who was hitchhiking to school. J.M.B. asked E.H. if he wanted to “get high” and they drove to a wooded area. Once there, E.H. reported that J.M.B. grabbed him by the hair, threw him to the ground, held a knife to his throat, and told him to lie on his stomach. E.H. managed to run away. J.M.B., on the other hand, claimed to have been giving E.H. a ride to school, that E.H. directed them to a wooded area because he had drugs, and that he was assaulted by E.H. J.M.B. was indicted in Somerset County for second-degree aggravated assault and third-degree criminal restraint. The indictment was issued in conjunction with a Middlesex County indictment based on events that took place one month later in that county. J.M.B. denied any sexual gratification from this incident. He pleaded guilty to criminal restraint. The third offense occurred while J.M.B. was free on bail for the E.H. incident. Sixteen-year-old A.C. reported that he was kidnapped by J.M.B. when J.M.B. pulled his car over to the side of the road where A.C. was walking to ask for directions. When A.C. leaned into the car’s compartment to look at a map that J.M.B. was showing him, he was knocked unconscious. He awoke to find his hands and feet tied behind him, his hair taped and tied by a rope attached to his feet, his eyes blindfolded, and his mouth gagged and taped shut. After a few hours, J.M.B. removed the gag and told A.C. that he would only let him go if he allowed J.M.B. to cut off his hair. J.M.B. thereupon ripped out or cut A.C.’s hair. J.M.B. then cut the ropes and drove A.C., still blindfolded, to a wooded area and abandoned him there. In a psychological evaluation later conducted for the Parole Board by a clinical psychologist, J.M.B. essentially admitted that the facts recited by A.C. to police were essentially correct. J.M.B. was charged with kidnapping and aggravated assault. He pleaded guilty and received as sentence of fifteen years for both the A.C. and E.H. incidents. It was recommended that he serve his sentence in the Department of Corrections Sex Offender Unit. During a psychologist’s interview, J.M.B. first acknowledged his behavioral pattern of finding an adolescent male, incapacitating him, tying him up, and pulling his hair out. He denied engaging in overt sexual acts with his victims but admitted that he found their bondage sexually arousing.
In the fourth incident, (July 7, 1989), twenty-year-old F.S. told police that he and J.M.B. had engaged in bondage behavior over a period of six-months until the final encounter in July when J.M.B. forced F.S into his house and tied him up, including tying his hair to a rope affixed to the ceiling. J.M.B. threatened F.S., cut off all of his
hair, and then drove him home. In a later search of J.M.B.’s car and home, police found a stun gun, photos of teenage males performing sexual acts, bondage paraphernalia, hair fibers in baggies, and clumps of used duct tape that had hair fibers stuck to them. J.M.B. admitted to handcuffing and gagging F.S., tying his hands and feet together, and tying him to the ceiling beam. This incident led to J.M.B.’s first and only charge for a “sexually violent offense” as listed in the SVPA. He was indicted for criminal restraint, terroristic threats, possession of a weapon for unlawful purposes, kidnapping, aggravated assault, and criminal sexual contact. J.M.B. pleaded guilty to criminal restraint, terroristic threats, and possession of a weapon for unlawful purposes. All other charges were dismissed. He was sentenced to a term of seven years, with a two-and-one-half year period of parole ineligibility. The fifth offense (July 1995) occurred when J.M.B. befriended fifteen-year-old S.S., who was a runaway from an in-house program for troubled youth. J.M.B. repeatedly gave S.S. money in exchange for the chance to tie him up. On one occasion, J.M.B. touched S.S.’s penis but stopped when S.S. told him to. According to S.S, J.M.B. would sit in front of him and watch him try to remove his bindings and would sometimes watch male bondage videos. J.M.B. was indicted for interference with the custody of a committed person, pleaded guilty and was sentenced to five years of probation, which was revoked on June 25, 1999 for failure to remain arrest free.
On his sixth offense, (April 3, 1997), J.M.B. was arrested for harassing nineteen-year-old W.S. J.M.B. tied up W.S. and put duct tape over his eyes. He stuffed a wet rag in W.S.’s mouth. W.S was eventually untied and J.M.B. eventually drove him home. J.M.B. admitted to the incident as described by W.S. to the police. The harassment charge was downgraded in municipal court to a violation of a local loitering ordinance. J.M.B. pleaded guilty and paid a fine. For his seventh offense, September 9, 1997, J.M.B.’s car was stopped for a motor vehicle violation. Handcuffs were observed by the officer in plain view. J.M.B. was arrested and his car was searched, where other bondage items were found. J.M.B. was charged with illegal possession of handcuffs and other motor vehicle violations. He pleaded guilty to the handcuff possession charge and was fined. The eighth offense, (April 7, 1999), resulted from a search of J.M.B.’s car during a stop on an outstanding traffic violation. During the search, police found hundreds of photographs depicting young men who were bound and gagged. The men were arranged in poses and some were blindfolded. Several photographs had locks of hair taped to them. At least two of the pictures depicted what appeared to be an erect penis in close proximity to the young men’s faces. J.M.B. provided a statement to police, claiming that the boys in the photos were willing participants. He stated he would go to his bedroom and masturbate while reading books involving bondage. He admitted his bondage activities were sex related but denied any sexual involvement with the participants. J.M.B. further stated that the “penis” in the pictures was not real. The police also questioned several boys that appeared in the photos. J.M.B was charged with three counts of harassment, one count of contempt, and three counts of luring and enticing a child. He was released on bail on the condition that he had no contact with the victims. Because J.M.B contacted J.R. several times, he was arrested and charged with witness tampering. The photographs seized were eventually suppressed, leaving the only viable charge of witness tampering. J.M.B. pleaded guilty and was sentenced to five years imprisonment.