IN THE MATTER OF THE CIVIL COMMITMENT OF L.Z.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0684-04T20684-04T2

IN THE MATTER OF

THE CIVIL COMMITMENT

OF L.Z.H.,

SVP-356-04

 

Submitted November 9, 2006 - Decided November 22, 2006

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-356-04.

Ronald K. Chen, Public Advocate, attorney for appellant, L.Z.H. (Alison Perrone, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

L.Z.H. appeals from a July 1, 2004 order finding him to be a sexually violent predator and committing him to the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm substantially for the reasons expressed by Judge Perretti in her oral decision on the date of the order.

A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when he or she "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. To warrant commitment, the State must prove 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the individual's "present serious difficulty with control over dangerous behavior." Id. at 132-33. The State must establish that it is highly likely that the individual will reoffend by clear and convincing evidence. Id. at 133-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Here, the State has met its burden.

Appellant has a substantial criminal record. Following his arrest in March 1989, he pleaded guilty to second-degree aggravated assault and was sentenced to eight years in prison. In April 1990, he pleaded guilty to second-degree aggravated assault, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose, for which he received a ten-year prison term to run concurrent with the eight-year sentence previously imposed.

In 1995, appellant, then thirty-one years old, was charged with second-degree sexual assault and third-degree endangering the welfare of a child, after being found naked in bed with a fifteen-year-old girl. He pleaded guilty to the third-degree offense, and the court imposed a four-year prison term. Also in 1995, after it was reported that appellant fondled the breasts and buttocks of an eleven-year-old girl, he entered a guilty plea to a third-degree child endangerment charge, for which he was given a three-year prison term.

In 1998, after being charged with fondling a twelve-year-old girl, appellant was indicted on charges of second-degree sexual assault, third-degree endangering the welfare of a child, and third-degree burglary. He pleaded guilty in 1999 to aggravated criminal sexual contact and the court imposed a five-year probationary term. His probation was later revoked and he was committed for a five-year prison term. Prior to the completion of the prison term, the State filed a petition to have appellant civilly committed under the SVPA. He now appeals from the decision to have him committed, raising the following points:

POINT ONE

THE ORDER OF COMMITMENT MUST BE REVERSED BECAUSE IT IS BASED ON ALLEGATIONS OF PAST CRIMINAL SEXUAL CONDUCT THAT WERE NEVER PROVEN AND WERE NEVER ADMITTED TO BY L.Z.H.

POINT TWO

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT L.Z.H. WAS SUBJECT TO SVP COMMITMENT.

We have carefully considered appellant's arguments in light of the applicable law, and conclude that his arguments are without merit and do not warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We add only the following.

At the commitment hearing, a psychiatrist, Louis Zeiguer, M.D., testified on behalf of the State and submitted written reports based upon appellant's records and Dr. Zeiguer's interview with him. Dr. Zeiguer diagnosed appellant with pedophilia, female, nonexclusive; and with paraphelia, NOS. Dr. Zeiguer testified that appellant's mental abnormality and personality disorder predispose him to sexually violent behavior. His lack of moral inhibitions puts him at risk for sexual recidivism. Dr. Zeiguer considered appellant "enormously dangerous to commit sexual offenses."

A psychologist, Natalie Barone, Psy.D., also diagnosed appellant with paraphelia, NOS. She found that appellant was at a significant risk to reoffend; and that he was predisposed to commit sexually violent offenses as a result of his personality disorder. She noted that appellant never participated in sexual offender treatment, which made him an untreated sex offender.

Paul Fulford, Ph.D., a psychologist, testified on behalf of appellant. He opined that appellant did not meet the criteria for commitment as a sexual offender. The judge, however, rejected Dr. Fulford's opinion, finding that it was not based on facts in the record.

In SVPA commitment cases, our scope of review is extremely narrow; we defer to the trial court's determination unless the record reveals a clear abuse of discretion. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil 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). Here, we find no abuse of discretion. The testimony upon which the trial judge relied was of a type reasonably relied upon by experts in the particular field in forming opinions. N.J.R.E. 703; J.H.M., supra, 367 N.J. Super. at 612. The record is more than sufficient to support the judge's determination that appellant suffers from abnormal mental disorders that predispose him to commit sexually violent acts, and is thus a sexually violent predator in need of commitment.

Affirmed.

 

(continued)

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6

A-0684-04T2

RECORD IMPOUNDED

November 22, 2006