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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4601-03T24601-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.B.M.,

________________________________________________________________

 

Submitted January 10, 2006 - Decided February 3, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-270-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan Smith, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, of counsel; Mary Beth Wood, Deputy Attorney General and Christina J. Deleveaux, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, L.B.M., who was fifty-one years old at the time of the hearing which is the subject of this appeal, appeals from a judgment entered on April 15, 2004, ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant was initially committed to the STU in 2002. Judge Perretti conducted his initial commitment hearing in December 2002. She determined that L.B.M. was a sexually violent predator and ordered his continued commitment. L.B.M. appealed that determination. While the appeal was pending, the matter again came before Judge Perretti on April 15, 2004 for a review hearing. Judge Perretti denied L.B.M.'s motion to postpone the hearing until the pending appeal was decided. At the conclusion of the hearing, the judge determined that L.B.M. continued to be a sexually violent predator and issued an order on April 15, 2004 requiring his continued commitment. On October 12, 2004, we affirmed the initial judgment of commitment issued in December 2002 (In the Matter of the Civil Commitment of L.B.M., Docket No. A-3602-02T2, decided October 12, 2004).

In this appeal, L.B.M. argues:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE APPELLANT OF HIS RIGHT TO A FAIRLY CONDUCTED COMMITMENT HEARING IN DENYING THE APPELLANT'S MOTION FOR A POSTPONEMENT.

A. SINCE THE APPEAL WAS STILL PENDING, THE TRIAL COURT WAS COLLATERALLY ESTOPPED FROM FINDING THAT THE APPELLANT WAS NOT A SEXUALLY VIOLENT PREDATOR.

B. THE SCOPE OF PROCEDURAL DUE PROCESS THAT IS REQUIRED IN SVPA LITIGATION IS VIOLATED WHEN THE SAME TRIAL COURT PRESIDES OVER CONSECUTIVE COMMITMENT HEARINGS INVOLVING THE SAME APPELLANT (NOT RAISED BELOW).

POINT II

THE STATE FAILED TO PROVE THE ELEMENTS FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT BY CLEAR AND CONVINCING EVIDENCE.

A. THE STATE FAILED TO ESTABLISH THAT THE APPELLANT'S PERSONALITY DISORDER AFFECTED HIS ABILITY TO CONTROL HIS SEXUALLY HARMFUL CONDUCT.

B. THE STATE FAILED TO ESTABLISH THAT THE APPELLANT IS LIKELY TO ENGAGE IN FUTURE ACTS OF SEXUAL VIOLENCE.

We have carefully reviewed the record, and we conclude that the order of continued commitment is based on findings of fact which are adequately supported by the evidence and that L.B.M.'s appeal arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm. We offer the following brief comments.

L.B.M. has a long history of sexual and non-sexual offenses dating back to his adolescence. Many of his offenses have included assaultive and threatening behavior, sometimes with the use of weapons. At the April 15, 2004 hearing, the only witness was Dr. Arnaldo Apolito, a psychiatrist called by the State. L.B.M. refused to be interviewed by Apolito. Therefore, Apolito based his opinions on a review of various records, including the reports of other evaluators, and L.B.M.'s treatment notes while at the STU.

Apolito diagnosed L.B.M. with paraphilia, n.o.s., non-consent; alcohol abuse and dependence; and anti-social personality disorder. He noted that L.B.M.'s offenses were characterized by cunning and very significant aggressiveness and violence and his behavior has been driven by a very strong sexual urge. Most offenses occurred during alcohol intoxication and he has shown no ability to control himself, even while under the supervision of the law. Apolito noted that, based upon the STU treatment notes, L.B.M. displayed some motivation in the latter part of 2003 to change, but subsequently lost interest and did not progress in treatment. Apolito opined that L.B.M. posed a high risk of re-offending and that his emotional, cognitive and volitional deficits would render him unable to control his impulses to re-offend.

Under the SVPA, a person who commits a sexually violent act may be involuntarily committed upon proof by "clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002). Once initially committed, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'utmost deference' and modified only where 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, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court's findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

L.B.M.'s argument that a postponement of the review hearing until conclusion of the appeal from the initial commitment order was concluded was necessary because, under principles of judicial estoppel and the doctrine of the law of the case, the trial court had no alternative during the review hearing to make any finding other than he was sexually violent predator in need of commitment misunderstands the scope and purpose of the review hearing. Such hearings are not based solely on the evidence presented at the initial hearing. The evidence at the mandatory annual review hearing includes all evidence previously submitted together with such updated evidence of events that occurred since the prior hearing. See State v. Fields, supra, 77 N.J. at 310. That is what happened here.

Apolito rendered a report dated April 1, 2004, which was admitted into evidence. Apolito's report and testimony included a review of events that occurred subsequent to the December 2002 hearing. Those events contributed to the basis for Apolito's opinions. Likewise, in making her findings, Judge Perretti engaged in a detailed review of the STU treatment notes, reflecting events that occurred subsequent to the prior hearing, and that information affected her findings and conclusions. There was no impropriety in conducting the review hearing before the appeal from the initial hearing was complete.

We find unpersuasive L.B.M.'s argument that he was somehow deprived of due process because the same judge conducted both of his hearings. This issue was not raised in the trial court and is therefore not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, recusals are based upon particularized circumstances that render it inappropriate for a judge to hear a case. L.B.M. has pointed to no such circumstances, and we reject out of hand the argument that a subsequent hearing by the same judge constitutes a per se due process violation.

Finally, we reject L.B.M.'s argument that the State was deficient in its proofs. Applying the standards we previously set forth, we are satisfied that Judge Perretti's finding that L.B.M. continued to qualify for SVPA commitment by clear and convincing evidence is amply supported by the record. We affirm substantially for the reasons set forth by Judge Perretti in her thorough oral decision of April 15, 2004.

 
Affirmed.

(continued)

(continued)

7

A-4601-03T2

RECORD IMPOUNDED

February 3, 2006