IN THE MATTER CIVIL COMMITMENT OF E.Z.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0627-05T20627-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.Z.C. SVP-155-01

 

Argued May 16, 2006 - Decided June 13, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-155-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

E.Z.C. appeals from the April 13, 2005 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The principles which inform our analysis of the issues are well-settled. An involuntary civil commitment can follow service of a criminal sentence or other 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. The State must prove "a threat to the health and safety of others because of the likelihood of [the committee] engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). It must demonstrate, "by clear and convincing evidence," id. at 130, "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." Id. at 132. The trial court must address the committee's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

E.Z.C., now twenty-six years old, was initially committed pursuant to the SVPA in 2001. At the time of his most recent hearing, Dr. Apolito, a psychiatrist who had examined E.Z.C., diagnosed E.Z.C. as suffering from pedophilia, chronic alcoholism and poly-substance abuse, both in institutional remission, and borderline personality disorder with narcisstic features, together with a history of major depression and post-traumatic stress disorder. Dr. Apolito testified that the severity and complexity of E.Z.C.'s diagnosis, and in particular his defensive, defiant and distrustful attitude toward therapy, had both complicated and hindered his treatment. He testified that E.Z.C. would be "at high risk of reoffending" were he to be released.

The State also presented the testimony of Dr. Thomas Schattner, a psychologist who is a member of the Treatment Progress Review Committee (TPRC). According to Dr. Schattner, although E.Z.C. was making progress in addressing behaviors that had led to his institutional infractions and his assignment to the Modified Activities Program (MAP), he was not "processing [his] sex offender specific issues" and remained in Phase Two. He described E.Z.C.'s participation as "minimal[] . . . alternately appropriate and active and defensive and disengaged in both process group and modules[,] . . . basically an overall inconsistency." E.Z.C. did not offer the testimony of any witnesses with contrary opinions.

In her oral opinion evaluating the evidence and the testimony, Judge Perretti concluded that:

The evidence presented was clear and convincing and I am clearly convinced that the respondent remains a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive capacities so as to predispose him to commit sexually violent acts.

I find that he has severe difficulty controlling his sexually violent behavior and as a result it is highly likely that he will commit sexually violent acts if not continued here for further care and treatment. A one year order will be entered.

On appeal, E.Z.C. first contends that the State's experts and the judge erred by relying on uncorroborated evidence of sexual offenses with which he has never been charged. In particular, although he concedes that he was found guilty of two counts of second-degree sexual assault arising out of offenses committed on W.C., his eight-year old cousin, he asserts that the experts and the judge erred in relying on sexual offenses he allegedly committed against two other victims, ages twelve and thirteen, and on allegations that he targeted additional victims while serving his sentence at Jamesburg. We reject this argument as lacking in merit. R. 2:11-3(e)(1)(E).

First, we discern no error because Dr. Apolito testified about these several uncharged offenses and incidents only to the extent that they formed part of the basis for his opinion. In doing so, he relied on them as part of the record and consistent with the manner in which other experts would utilize this information. Moreover, in describing these other incidents, Dr. Apolito utilized and referred to records documenting that E.Z.C. had admitted to each of these other behaviors during treatment.

Similarly, we discern no error in Judge Perretti's use of these incidents. She pointed out, as part of the factual basis for her findings and conclusions, the particular documents which record the circumstances in which E.Z.C. made his several statements relating to these uncharged offenses. In reaching her decision, however, she gave these other incidents appropriate consideration both in evaluating the basis for the expert's opinion and as they offered support for her findings and conclusions. See In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490-91 (App. Div. 2005).

E.Z.C.'s other arguments on appeal, that the experts misinterpreted the actuarial data and overlooked the treatment reports identifying areas in which he has made progress, are similarly meritless. R. 2:11-3(e)(1)(E). Our review of the record and of Judge Perretti's findings and conclusions demonstrates that the experts appropriately evaluated both the actuarial and treatment evidence. E.Z.C.'s diagnosis is unchallenged, his participation in his treatment has been inconsistent at best and his progress has been minimal. Based on our review, we agree with Judge Perretti's conclusion that the record is both clear and convincing that E.Z.C. remains highly likely to reoffend if released. The scope of our review in matters of this kind is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Apart from more generally applicable standards of review, we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." Ibid.; In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We can make no such determination on the record before us.

Affirmed.

 

(continued)

(continued)

6

A-0627-05T2

RECORD IMPOUNDED

June 13, 2006