IN THE MATTER CIVIL COMMITMENT OF J.D.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0501-04T20501-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.D.H. SVP-236-02

__________________________________

 

Argued: October 3, 2005 - Decided:

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-236-02.

Brian Hughes, Assistant Deputy Public Defender, argued the cause for appellant J.D.H. (Yvonne Smith Segars, Public Defender, attorney).

Lauren Caruso Garofalo, Deputy Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

J.D.H. appeals from the April 4, 2004 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He was initially committed to the STU on July 3, 2002. This court affirmed the June 17, 2003 order continuing his commitment on March 21, 2005 (A-2777-02).

The predicate offense for J.D.H.'s commitment to the STU is a 1985 conviction for first degree aggravated sexual assault. As related in our March 2005 opinion, his sexual offense history dates to 1981 when he was fifteen years old; while incarcerated he incurred six sanctions for infractions of a sexual nature. He was committed pursuant to the SVPA and transferred to the STU following completion of his term of imprisonment.

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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has 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 re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

In her oral opinion, Judge Perretti found that the State had proved that J.D.H. continues to qualify as a sexual predator subject to involuntary civil commitment. Judge Perretti found that J.D.H. carries a diagnosis of paraphilia NOS with possible features of sexual sadism and anti-social personality disorder. She also found that the diagnosis is uncontradicted and "based on [J.D.H's] criminal history of three sex charges resulting in convictions, as well as other sex charges which were either withdrawn or reversed and not retried." Judge Perretti found that the diagnosis of anti-social personality disorder was corroborated by his long history of institutional infractions not only while imprisoned but also at the STU.

The judge found that the combination of paraphilia and an anti-social personality disorder "increases the risk that the respondent will act out on his predisposition caused by the paraphilia alone." These diagnoses coupled with his history of institutional infractions, some of which were of a sexual nature, demonstrated that J.D.H. has serious difficulty controlling his deviant sexual behavior.

The judge also found that J.D.H. has not progressed in treatment. He is in Phase 2 of the five phase treatment plan; his participation and progress in treatment is poor. In fact, he continues to assert that he has been falsely accused of all of the sexual offenses. Judge Perretti concluded that she was convinced that J.D.H. continued to satisfy the statutory requirements for involuntary commitment pursuant to the SVPA. She said:

The evidence that I saw, read and heard is clear and convincing. And I am clearly convinced that the respondent continues to be a sexually violent predator, that he suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive capacity in such a way as to predispose him to commit sexually violent acts. I find that he has little or no control over his behavior, including his sex-offending behavior. And I find that it is highly likely that he will recidivate if he does not continue here for care and custody.

On appeal, J.D.H. argues that he is entitled to a jury trial and the standard of proof should be beyond a reasonable doubt rather than clear and convincing evidence. He also contends that the expert testimony presented by the State was insufficient to satisfy the State's burden of proof. J.D.H. characterizes Dr. Kern's opinion as an unguided clinical measurement that produced an illogical and unreasonable assessment.

A person subject to an involuntary commitment proceeding has the right to present evidence, cross-examine witnesses and have a hearing held in camera. N.J.S.A. 30:4-27.31. There is no right to a jury trial in an involuntary civil commitment hearing pursuant to the SVPA, nor is there a right under the due process clause for the burden of proof to be beyond a reasonable doubt. See In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

J.D.H. contends that Dr. Kern's expert testimony is ill-founded and not worthy of credence because it is not founded on actuarial measurements. While Dr. Kern did not refer to any actuarial measurements of risk, such as the Static 99, the State is not required to support every commitment with such data. Indeed, in the past we have highlighted the shortcomings of heavy reliance on actuarial measurements when unaccompanied by other evidence, such as interviews and an evaluation of the contemporaneous treatment notes. See In re Commitment of R.S., 173 N.J. 134, 136-37 (2002).

Here, J.D.H.'s diagnosis is uncontradicted and accompanied by a criminal history, an institutional record and a treatment record that corroborates the diagnosis. As found by Judge Perretti, the record demonstrates a person who does not acknowledge his participation in, much less his responsibility for, the predicate offenses, and his behavior manifests his inability to control his deviant behavior. He attends treatment sessions but does not participate in the treatment process. He remains an untreated sexual offender.

Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The record is sufficient to support Judge Perretti's determination to continue J.D.H's commitment.

Affirmed.

 

NOS means not otherwise specified.

(continued)

(continued)

6

A-0501-04T2

RECORD IMPOUNDED

October 17, 2005