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

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2477-052477-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.M.W., SVP-223-02

_________________________________

 

Argued October 24, 2006 - Decided December 4, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-223-02.

Heather Ellis Cuculo, Assistant Deputy

Public Advocate, argued the cause for

appellant (Ronald K. Chen, Public Advocate,

attorney).

David L. DaCosta, Deputy Attorney General,

argued the cause for respondent (Stuart

Rabner, Attorney General, attorney).

PER CURIAM

R.M.W. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of January 11, 2006, entered after the annual review required by N.J.S.A. 30:4-27.35. That order continued his commitment until October 30, 2006. The parties have agreed that this appeal should be determined on the record and oral argument presented on October 24, 2006.

R.M.W. contends that the evidence was inadequate to support his continued commitment and requests that we remand for consideration of discharge options. We affirm substantially for the reasons stated by Judge Freedman in his comprehensive oral opinion of December 23, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely unless the person is confined "in a secure facility for control, care and treatment." In re

Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment. Release subject to conditions is appropriate if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of commitments pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). This record shows no such abuse with respect to the order under review. It is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

R.M.W.'s predicate offenses are detailed in this court's decision affirming his commitment pursuant to the SVPA. In re Commitment of R.M.W., No. A-6243-01 (App. Div. Nov. 29, 2004) (slip op. at 2-7). R.M.W. had eighteen convictions, three were related to sexual conduct: a 1978 incident led a jury to convict him of lewdness and atrocious assault and battery; a 1988 incident led him to plead guilty to second-degree sexual assault by force or coercion; a 1995 incident led him to plead guilty to criminal restraint of a woman whom he held while exposing himself. Id. at 3-5.

R.M.W. is now sixty one years of age, and his argument that he no longer poses a risk of recidivism that is sufficiently high to warrant continued commitment is based on his age. R.M.W. presented the testimony of an expert, Dr. Barry Katz. Dr. Katz opined that R.M.W.'s advanced age and the fact many of his convictions were not based on sexual offenses indicated a risk of recidivism that was no more than moderate. He attributed R.M.W.'s sexual offense to his antisocial personality disorder and alcohol abuse rather than paraphilia. He opined that the risk of R.M.W.'s commission of another sexually violent offense would be no more than low if he were released to a supportive environment such as residence in a halfway house or with a family member subject to conditions. Dr. Katz recommended release conditioned upon an obligation to take a medication to prohibit alcohol abuse and to submit to testing that would detect relapse.

Dr. Katz acknowledged that R.M.W.'s involvement in treatment at the STU and understanding of his cycle of offending were minimal. He also acknowledged that there was nothing in STU records that indicated R.M.W.'s remorse, empathy or understanding of his relapse cycle. Dr. Katz had no information that there was a member of R.M.W.'s family who was willing to offer him a home.

Judge Freedman rejected Dr. Katz's conclusion that R.M.W.'s risk of reoffense had been mitigated to the point that commitment under the SVPA was no longer required. The judge noted that R.M.W. had committed sex offenses during his thirties, forties and fifties. He considered Dr. Michael McAllister's testimony about the significance of R.M.W.'s yielding to his urges and committing sexually aggressive crimes over an extended period of time, and he considered the doctor's testimony about the significance of R.M.W.'s failure to participate in or benefit from treatment. On that basis, the judge concluded that it remained highly likely that R.M.W. would commit another sexually violent offense if released from the STU due to a personality disorder that caused him serious difficulty in controlling that behavior. Judge Freedman's determination is supported by the record, explained with reference to that record and the law and entitled to deference from this court. See V.A., supra, 357 N.J. Super. at 63.

Affirmed.

 

If the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

6

A-2477-05

RECORD IMPOUNDED

December 4, 2006

 


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