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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7071-03T27071-03T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

B.S.M.

___________________________________________________

 

Submitted January 11, 2006 - Decided April 6, 2006

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-371-04.

Yvonne Smith Segars, Public Defender, attorney

for appellant B.S.M. (Nancy C. Ferro, Designated

Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent State of New Jersey (Patrick

DeAlmeida, Assistant Attorney General, of

counsel; Lisa Marie Albano, Deputy Attorney

General, on the brief).

PER CURIAM

B.S.M. appeals from a judgment entered on July 30, 2004, committing him pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 et seq. On this appeal he argues:

POINT I THE STATE FAILED TO PROVE BY CLEAR AND

CONVINCING EVIDENCE THAT B.S.M. IS A

SEXUALLY VIOLENT PREDATOR IN NEED OF

CIVIL COMMITMENT

POINT II B.S.M. SHOULD HAVE BEEN DISCHARGED

SUBJECT TO CONDITIONS AS THE COURT

DEEMS NECESSARY TO INSURE THE PRO-

TECTION OF THE COMMUNITY OR ALLOWED

TO ENTER A PROGRAM WHICH WOULD INVOLVE

THE GRADUAL LESSENING OF HIS RESTRIC-

TIONS SO THAT HE COULD PROVE THAT HE

HAS INCORPORATED THE THERAPY INTO HIS

BEHAVIOR AND IS NOT A DANGER TO THE

COMMUNITY

The issue before us is, essentially, whether the State demonstrated by clear and convincing evidence that appellant has a mental abnormality or personality order and possessed a present likelihood of continued sexually violent behavior if released from commitment. See, e.g., I/M/O Commitment of W.Z., 173 N.J. 109 (2002). There is no dispute that he has been convicted of "sexual violent offense[s]." See N.J.S.A. 30:4-27.26. The record requires affirmance of the commitment, under our scope of review, based on the diagnosis of paraphilia which predisposes appellant to future acts of sexual violence and the expert testimony that he is a "threat to the health and safety of others." N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at 132. Here, Dr. Stanley Kern's testimony is sufficient to sustain the judgment.

At the hearing of July 30, 2004, Dr. Kern testified that appellant "had a diagnosis of paraphalia NOS" because B.S.M.'s actions involved the "humiliation and degradation of victims" as well as sexual assault, and his "relatively long history of several offenses over a period of time." The doctor also testified that appellant suffers "from a mental abnormality and/or personality disorder, a combination of the two that predisposes him to commit sexually violent offenses." According to Dr. Kern:

[T]he diagnosis of paraphilia . . . a diagnosis of sexual sadism, as well as a persona[lity] disorder of a non-specific type all contribute to the possibility that he will re-offend[].

Dr. Kern felt that the "risk for sexual recidivism" was "extremely high" "if he was to be discharged into the community" at that time.

Our scope of review is limited and Judge Perretti could credit the testimony of Dr. Kern over Dr. Robert Carlson who testified for appellant, as she did in this case.

The order of civil commitment 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." G.G.N., supra, 372 N.J. Super. at 46-47; see also W.Z., supra, 173 N.J. at 132; N.J.S.A. 30:4-27.26 (defining "sexually violent predator"); N.J.S.A. 30:4-27.32(a). These standards were recognized and applied in this case, and our review of the commitments pursuant to the SVPA is limited. See I/M/O Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.) (applying "clear abuse of discretion" standard), certif. denied, 185 N.J. 393 (2005). The record discloses no abuse of discretion with respect to the order under review. Moreover, the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference. Cf. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Our conclusion renders the appellant's second point moot. We presume that at the first review hearing B.S.M. presented a plan for conditional discharge assuming that he participated and made progress in his therapy.

 
The commitment order under review is affirmed.

There is also no contention that the experts could not consider B.S.M.'s presentence reports and criminal history information in considering their opinions. We have sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings. See I/M/O the Civil Commitment of G.G.N., 372 N.J. Super. 42, 55-56 (App. Div. 2004) (with respect to reference to presentence reports); I/M/O the Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) (permitting hearsay contained in presentence reports, ADTC evaluations and an expert's opinion in affirming a commitment under the SVPA), certif. denied, 183 N.J. 586 (2005); I/M/O the Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004) (permitting reference to Special Treatment Unit reports); I/M/O the Civil Commitment of J.H.M., 367 N.J. Super. 599, 612-13 (App. Div. 2003), ("[a] psychiatrist is permitted to testify about a defendant's prior crime history in order to offer an opinion about a defendant's mental condition"), certif. denied, 179 N.J. 312 (2004).

(continued)

(continued)

5

A-7071-03T2

RECORD IMPOUNDED

April 6, 2006