IN THE MATTER OF THE CIVIL COMMITMENT OF A.E.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6220-04T26220-04T2

IN THE MATTER OF

THE CIVIL COMMITMENT OF

A.E.P. SVP-12-99.

____________________________

 

Argued January 11, 2006 - Decided April 10, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. SVP-12-99.

Joan D. Van Pelt, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney).

Amy E. Duff, Deputy Attorney General, argued the

cause for respondent (Peter C. Harvey, Attorney

General, attorney).

PER CURIAM

A.E.P. appeals from an order entered on July 25, 2005, continuing his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to - 27.38 ("SVPA"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

In December 1990, after sexually assaulting a three-year-old girl, A.E.P. entered a negotiated plea of guilty to one count of aggravated sexual assault and one count of fourth-degree endangering the welfare of a child. He was sentenced to ten years in prison. According to the record before us, he incurred more than thirty institutional charges while incarcerated.

Aggravated sexual assault is a sexually violent offense under N.J.S.A. 30:4-27.26. In September 1998, A.E.P. was released from prison and committed to Greystone Park Psychiatric Hospital under the general civil commitment statute, N.J.S.A. 30:4-27.1 to -27.23. In June 2000, Judge Philip Freedman entered an order for A.E.P.'s civil commitment pursuant to the SVPA. A.E.P. was then transferred to the Special Treatment Unit ("STU"), where he has since remained, being periodically re-evaluated and recommitted. In February 2005, we affirmed an order that A.E.P. continued to be a sexually violent predator in need of involuntary civil commitment. In re Civil Commitment of A.E.P. SVP-12-99, No. A-5262-02 (App. Div. Feb. 15, 2005). The order from which he now appeals was entered following a plenary hearing before Judge Serena Perretti on July 25, 2005.

In his notice of appeal, A.E.P. listed the following issues to be raised on appeal:

1. THE ATTORNEY GENERAL FAILED TO PROVE ALL ELEMENTS REQUIRED BY THE SVPA BY CLEAR AND CONVINCING EVIDENCE

2. THE COURT ERRED BY FAILING TO INCLUDE IN ITS COMMITMENT ORDER A REQUIREMENT THAT THE STU PROVIDE THE TREATMENT MODULES THAT THE STATE'S EXPERTS TESTIFIED WERE REQUIRED FOR [A.E.P.] TO PROGRESS IN TREATMENT

3. THE COURT ERRED BY REFUSING TO ORDER THAT THE JUVENILE RECORDS OF A.E.P.'S SISTER BE PRODUCED FOR AN IN CAMERA INSPECTION TO ALLOW HIM TO ESTABLISH THE VERACITY OF HIS STATEMENTS REGARDING THE DISMISSED SEXUAL ASSAULT CHARGE

A.E.P.'s attorney addressed those issues before this court in oral argument.

At the hearing before Judge Perretti, the State presented two witnesses, Michael McAllister, D.O., a psychiatrist, and Gregory Gambone, Ph.D. Because A.E.P. twice refused to meet with Dr. McAllister prior to the July 2005 hearing, Dr. McAllister's testimony was based upon an evaluation of A.E.P. he conducted in 2002 as well as a review of the records of A.E.P.'s subsequent adjustment to treatment. Dr. McAllister diagnosed A.E.P. as suffering from conditional paraphilia, not otherwise specified, polysubstance abuse in institutional remission and personality disorder, not otherwise specified. Dr. McAllister testified that A.E.P. was "maintaining an attitude that would lend itself to a sexual offender" and that he believed "to a reasonable degree of medical certainty that [A.E.P.] likely has a sexual perversion with -- to perform sexual acts with adolescents and/or minors . . . ." He also testified that A.E.P. has serious difficulty controlling his sexual offending behavior and presented a high risk of re-offending in the foreseeable future if he were not confined in a secure facility for treatment.

Dr. Gambone was a member of the Treatment Progress Review Committee ("TPRC") that evaluated A.E.P. and prepared the Committee's report. The Committee concurred that A.E.P. was appropriately placed in phase two of the STU's five-phase treatment plan, and set out goals for him to achieve in treatment.

According to A.E.P.'s Group Participation Notes, he has admitted to making a list of violent acts he envisioned performing upon his daughter, allegedly as retaliation against her mother. He has also maintained the view that there is nothing inappropriate about a sexual relationship between a ten-year-old and a twenty-year-old.

A.E.P. did not present any expert testimony but he testified, disputing certain of the allegations relating to whether he had, at the age of fourteen, sexually assaulted his younger sister.

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. The State is required to prove a 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, by clear and convincing evidence, that it is highly likely that the committee will re-offend. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid.

At the end of the proceedings, Judge Perretti put a comprehensive oral opinion on the record, stating her reasons for continuing A.E.P.'s civil commitment. She concluded her opinion by stating that she was "clearly convinced that [A.E.P.] continue[d] to be a sexually violent predator, suffering from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive capacities, so as to predispose him to commit sexually violent acts." She specifically found a "high likelihood" that A.E.P. would re-offend if he were not confined for further care and treatment at the STU.

 
We have conducted our own review of the record. Judge Perretti's findings and conclusions are supported by the record, and they are affirmed, substantially for the reasons expressed in her oral opinion of July 25, 2005.

Affirmed.

(continued)

(continued)

6

A-6220-04T2

RECORD IMPOUNDED

April 10, 2006