IN THE MATTER CIVIL COMMITMENT OF S.C.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2475-05T26138-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.C.K. SVP-219-01

_______________________________

 

Argued: May 16, 2006 - Decided June 5, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, SVP-219-01.

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

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

PER CURIAM

S.C.K., the committee, appeals from a judgment entered on January 11, 2006, continuing his commitment to the State of New Jersey Special Treatment Unit, pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, as a "sexually violent predator" in need of involuntary civil commitment in a secure facility for control, care and treatment, see N.J.S.A. 30:4-27.26.

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." Ibid. 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, 608-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the instant hearing, the State presented the testimony of a psychiatrist who had evaluated committee, as well as the testimony of a psychologist who was a member of the unit charged with the responsibility of assessing the treatment committee had received. No affirmative evidence was presented on committee's behalf. The psychiatrist opined a dual diagnosis "of a paraphilia, not otherwise specified; and of an anti-social personality disorder."

Judge Freedman rendered a comprehensive oral opinion containing his findings and conclusions in the matter. After analyzing the proofs, he found:

[W]hile [committee] had made some progress in treatment, it is not sufficient to reduce his risk below highly likely [to reoffend]. . . . I don't think there's any question that [the psychiatrist's] testimony clearly supports a conclusion that there's a high likelihood of sexually violent conduct within the reasonable future if [committee] were to be released.

There's been no presentation of any discharge plan to the court for consideration. And I don't believe he has progressed far enough in treatment to merit even the court on its own thinking of possible discharge plans.

* * *

I don't think there there's any question that he is a dangerous person.

And based on these findings, I'm satisfied by clear and convincing evidence that he needs to . . . continue being committed so that he can continue his treatment.

Judge Freedman noted that the treatment progress committee had made to that date augured well for his release in the future.

Committee argues that the State failed to prove by clear and convincing evidence that he was highly likely to commit a crime of sexual violence if not recommitted. The argument focuses on the assertedly inadequate grounding of the psychiatric expert's opinion concerning committee's likelihood to reoffend, because the basis of that opinion did not meet the legal threshold of "highly likely," but rather stemmed from an assessment that reoffense was more likely than not.

Irrespective of how the testimony of the expert might have been presented, it is clear that, based on all the evidence, Judge Freedman found, unequivocally, that a clear and convincing showing had been made of a high likelihood of reoffense. In all matters involving expert opinion, the finder of fact is not bound by the views expressed by the expert, but is free to accept or reject some or all of what the expert has offered by way of opinion, see Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985), and base the ultimate findings and conclusions on the facts and fair inferences that the proofs support. See Waterson v. General Motors Corp., 111 N.J. 238, 248-49 (1988).

The scope of our review is narrow; we must defer to the trial court's findings and conclusions unless the record reveals a clear misapplication of discretion. See 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 evidence presented at the hearing, taken as a whole, with the deference we are required to accord the finder of fact, adequately supports the findings Judge Freedman made in this matter that, clearly and convincingly, S.C.K. is highly likely to reoffend; as well as the judge's conclusion that the commitment should continue.

Affirmed.

 

(continued)

(continued)

5

A-2475-05T2

RECORD IMPOUNDED

June 5, 2006