IN THE MATTER CIVIL COMMITMENT OF R.X.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0648-04T20648-04T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.X.W. SVP 349-03.

_______________________________________________________

 

Submitted October 4, 2006 - Decided October 25, 2006

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. 349-03.

Ronald K. Chen, Public Advocate, attorney

for appellant (Nancy C. Ferro, Designated

Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Lisa Marie

Albano, Deputy Attorney General, on the brief).

PER CURIAM

R.X.W. appeals from a judgment entered on July 13, 2004, committing him to the Special Treatment Unit under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (the SVPA). We affirm.

The SVPA defines a "sexually violent predator" as a person "who has been convicted . . . 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." N.J.S.A. 30:4-27.26. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

Thus, commitment under the SVPA requires clear and convincing proof "of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003).

The scope of appellate review of a trial court's decision in a commitment proceeding is "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (citation omitted).

On appeal, R.X.W. offers the following arguments:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.X.W. IS A SEXUALLY VIOLENT PREDATOR IN NEED OF CIVIL COMMITMENT[.]

POINT II

R.X.W. SHOULD HAVE BEEN DISCHARGED SUBJECT TO CONDITIONS AS THE COURT DEEMS NECESSARY TO INSURE THE PROTECTION OF THE COMMUNITY OR ALLOWED TO ENTER A PROGRAM WHICH WOULD INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY[.]

Based on our review of the record and the applicable law, we conclude that the issues raised by R.X.W. are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.

At the hearing on July 13, 2004, the State presented testimony by Dr. Zeiguer, a psychiatrist, and Dr. Barone, a psychologist. R.X.W. presented testimony by Dr. Greenfield, a psychiatrist. The trial court ultimately concluded that the testimony provided by the State's witnesses was more persuasive than Dr. Greenfield's testimony. The trial court's findings and conclusions included the following:

It was surprising to me how similar in content was the testimony of the State's psychiatrist, Dr. Zeiguer, and the respondent's psychiatrist, Dr. Greenfield. They both agree that there were four sex offenses. Dr. Greenfield, when he initially began his testimony, began with a correction. He had mistakenly referred in his report to three sex offenses when there should have been four.

. . . .

In addition to that basic agreement that there are four sex offenses here, Dr. Greenfield agrees with the State's experts' diagnoses. Polysubstance abuse. Impulse control disorder NOS and paraphilia NOS. Antisocial personality disorder.

These diagnoses appear on pages 10 and 11 of his report. However, he opines that these disorders have gone away. Polysubstance abuse in institutional remission. Antisocial personality disorder in institutional remission. Paraphilia NOS based on exhibited behaviors and activities in the past, consistent with those diagnoses, however, in the opinion of Dr. Greenfield, at the time of his examination of the respondent, by virtue of [R.X.W.'s] long period of incarceration and institutional remission, these are no longer actively symptomatic or applicable diagnoses.

What is interesting here and what causes me to seriously question, and indeed, in the final analysis disbelieve and not accept the idea that this is in institutional remission, is the fact that when this report was written Dr. Greenfield was not aware of what he concedes is the fourth sexual offense, which was committed some four years after he came out of jail for a rather long period of time. There was no institutional remission.

. . . .

I accept the testimony of the State's witnesses. The diagnoses, as I said, are agreed. It's almost as if it were stipulated. The only difference is whether these diagnoses remit in institutions. And I find that they do not, based upon the State's testimony, and based upon a number of concessions that Dr. Greenfield made in his testimony, which I have already reviewed.

. . . .

I accept the testimony of the two witnesses, Dr. Zeiguer and Dr. Barone, as highly persuasive . . . . I am clearly convinced that this is a highly dangerous sexually violent predator who suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, cognitive and emotional capacities so as to predispose him to recidivate and commit further sexual offenses.

As a result of this predisposition, I find that it is highly likely that he will reoffend as a result of the great difficulty that he has in controlling himself.

The trial court thoroughly analyzed all of the evidence, and it rendered a comprehensive decision. Its findings are fully supported by substantial credible evidence, and its conclusions are consistent with controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Perretti in her oral decision on July 13, 2004.

Affirmed.

 

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6

A-0648-04T2

RECORD IMPOUNDED

October 25, 2006