IN THE MATTER CIVIL COMMITMENT OF L.J.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3046-05T23046-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.J.B. SVP 221-01

________________________________

 

Argued September 25, 2006 - Decided October 12, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. 221-01.

Lewis P. Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

Amy Duff, Deputy Attorney General, argued the cause for respondent

(Anne Milgram, Acting Attorney General,

attorney).

PER CURIAM

L.J.B. appeals from an order of February 7, 2006, continuing his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

An involuntary civil commitment can follow service of a sentence, or other criminal 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; 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).

The State produced Dr. Kern who testified that L.J.B. pled guilty on January 31, 1991 to the predicate offense of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2. He also testified that the records reviewed by him demonstrated a prior juvenile conviction for what, if committed by an adult, would be an act of lewdness. That conviction involved the secreting of panties and a pornographic magazine in a vacant home so L.J.B. could read the magazine and feel the undergarments. The record also revealed reported incidents of sexually "inappropriate grabbing . . . and intrusive behavioral incidents and the abusing of a female" and threats "to rape and kill two females that testified at his Court hearing."

After reciting this history, Dr. Kern diagnosed L.J.B. as suffering from paraphilia NOS, fetishism, impulse disorder and antisocial personality disorder. He concluded from a review of treatment records that L.J.B. was "poorly motivated. And [he] has made little, if any, progress." Dr. Kern noted that L.J.B. had "extremely limited" insights into his sexually offending behavior and, in fact, denied the sexual nature of his acts. In the absence of admitting the offense, Dr. Kern opined "he'll never be able to gain an insight into his behavior . . . and attempt to control his behavior."

Given L.J.B.'s history and his poor treatment progress, Dr. Kern opined that L.J.B. would "absolutely" have serious difficulty controlling his sexually offending behavior and that, absent continued commitment, the risk that he would sexually

re-offend was "high." L.J.B. produced no witnesses.

In a comprehensive oral opinion, Judge Perretti found an adequate basis for Dr. Kern's diagnosis and found that L.J.B. "continues to be a sexually violent predator [who] suffers from abnormal mental conditions and personality disorders that adversely influence his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts." She also found that "[b]ecause he has serious difficulty controlling his sexually violent behavior . . . it is highly likely that he will recidivate and act in a sexually violent manner within the reasonably foreseeable future if he is not confined further . . . ."

The judge specifically dealt with the claim that L.J.B. had not committed the predicate offense, noting that L.J.B. was free to testify that the 1989 offense was not sexual but had failed to do so. In the absence of such testimony, the plea to attempted aggravated sexual assault was adequate to support the judge's finding that L.J.B. was guilty of that offense. L.J.B. also argues that Dr. Kern had an insufficient basis for his diagnosis and relied improperly on the complaint. Those arguments are without merit. The diagnosis was based on information contained in the record that was of the type normally relied upon by experts such as Dr. Kern, and, as the judge found, while Dr. Kern had reviewed the complaint, his opinions were based upon source materials.

The record under review justifies the continued commitment under the SVPA. There is a narrow scope of review of an order for commitment. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). This is not such a case. Accordingly, the order is affirmed.

Affirmed.

 

Dr. Kern's testimony did not include the date of the plea or the statutory reference, which appear in the Judgment of conviction.

(continued)

(continued)

5

A-3046-05T2

RECORD IMPOUNDED

 

October 12, 2006