IN THE MATTER CIVIL COMMITMENT OF A.X.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3604-05T23604-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.X.C.

SVP-38-00

_____________________________________

 

Argued September 25, 2006 - Decided October 11, 2006

Before Judges S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-38-00.

Joan D. Van Pelt, 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 (Anne Milgram, Acting Attorney General, attorney).

PER CURIAM

A.X.C. appeals from the order of December 14, 2005, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

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," 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, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

After thoroughly reviewing the record and considering argument of counsel, we are satisfied that the State has met its burden in this case, and we affirm, substantially for the reasons stated by Judge Freedman in his oral opinion placed on the record on December 14, 2005. We add the following comments.

This case was essentially a credibility dispute between Dr. Kern and Dr. Gambone, who testified that A.X.C. had not progressed sufficiently in treatment and remained at high risk to reoffend if released, and Dr. Katz, who offered conflicting testimony that A.X.C. could be conditionally released. In a thorough and detailed opinion, Judge Freedman found Dr. Kern's testimony to be more credible than Dr. Katz's testimony, and he concluded that A.X.C. still presented a high risk of reoffending if released:

The Court finds by clear and convincing evidence that the record does not support Dr. Katz's view of substantial progress in treatment to the point of reducing [the] risk below the commitment standard. In addition, the doctor's reliance on the Static-99 totally to establish . . . baseline of risk is not in keeping with the manner in which the Supreme Court has indicated these actuarials should be used. R.S. tells us they should be used as just another factor to be considered in determining risk.

In cases of this kind with real issues, the extent to which treatment has mitigated risk, the decision regarding commitment becomes progressively more difficult as treatment progresses. [A.X.C.] has progress, which should be encouraged as Dr. Kern stated, to keep working . . . . [H]owever, I am satisfied that the record supports Dr. Kern's opinion and not that of Dr. Katz. I accept and credit Dr. Kern's view based on my review of the treatment record and the T.P.R.C. findings and recommendations.

A.X.C. contends that Judge Freedman agreed with Dr. Katz that A.X.C. could be released to a halfway house, but placed the burden on A.X.C. to find such a facility. We conclude that is not an accurate characterization of his opinion. We quote the relevant portion of his opinion in full:

I am somewhat in agreement with Dr. Katz that if there were a halfway house where the respondent would receive supervision and intensive sex offender specific treatment while exploring employment and educational possibilities, depending on the details, it might allow, along with supervision for life, for a conditional discharge. I am unaware of any such place. In any event, no such discharge plan is presented to the Court.

There is a discharge plan which has been presented. It's been marked R-3 I believe. . . . And that plan merely indicates he wants to live with his mother in Atlantic City. He lists several of the places where he could get outpatient treatment. He lists a number of people who would be his support group. And that he could get jobs in several areas. A very limited . . . release plan. It's clearly inadequate. Basically, he wants to live with his mother until he can get his own place, take outpatient treatment once a week, and get himself a job.

. . . Both expert witnesses feel he needs supervision. Dr. Katz feels it can be accomplished somewhere else and . . . I disagree, Dr. Kern disagrees . . . .

The SVPA, N.J.S.A. 30:4-27.37, does require the State to create a discharge plan where the court orders a committee to be released, and the State itself may propose conditions if it determines that an individual can be safely released with conditions. N.J.S.A. 30:4-27.32c(1). But conditional release is not appropriate where the individual remains dangerous:

Contrary to JJF's contentions, the E.D. court certainly did not suggest that a judge should conditionally discharge a person deemed a sexually violent predator under the SVPA. Under E.D., if the person is a sexually violent predator, conditional discharge is not an option. Only if the person is no longer likely a sexually violent predator may the judge consider conditional discharge under E.D.

[In re Commitment of JJF, 365 N.J. Super. 486, 498 (App. Div.) (citing In re Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002), certif. denied, 179 N.J. 373 (2004)), certif. denied, 179 N.J. 373 (2004).]

Further, contrary to A.X.C.'s contention, JJF does not hold that it is the State's burden to create a discharge plan in a case such as this, where the State's position is that the committee remains dangerous and is not ready to be discharged. In fact, we held in JJF that the burden was on the committee to produce evidence that he could be conditionally discharged, indicating there that "JJF presented no expert testimony or other evidence of a discharge plan to the judge." Id. at 502. In the case before us now, A.X.C. presented a discharge plan that would have been inadequate even if the trial judge had agreed that A.X.C. was otherwise ready to be released, a finding the judge did not make.

Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 31l (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Reviewing the evidence and Judge Freedman's decision with that standard in mind, we find no basis to disturb his factual findings or legal conclusions. Affirmed.

 

(continued)

(continued)

6

A-3604-05T2

RECORD IMPOUNDED

 

October 11, 2006