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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1512-09T21512-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.M.B.S.

SVP-12-99.

___________________________________

 

Argued May 24, 2010 Decided

Before Judges Lisa and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-12-99.

Joan Van Pelt, Deputy Public Advocate, argued the cause for appellant (Stefanie A. Brand, Acting Public Advocate, attorney).

David DaCosta, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant A.M.B.S., now forty years of age, formerly known as A.E.P., appeals from Judge Freedman's November 20, 2009 order continuing his involuntary civil commitment in a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument, appellant's counsel argued that Judge Freedman's findings are not supported by the record. In particular, appellant argues that the State failed to prove by clear and convincing evidence that he was highly likely to re-offend, and he therefore no longer meets the criteria for commitment. We disagree and affirm.

The petition for civil commitment described the following predicate offense: In December 1988, appellant entered the apartment of a three-year-old child, his girlfriend's niece, after the child's mother had left the apartment, and sexually assaulted her. The next day appellant was arrested and charged with three counts of first-degree aggravated sexual assault and one count of fourth-degree endangering the welfare of a child. In December 1990, pursuant to a plea agreement, appellant pled guilty to, and was convicted of, one count of aggravated sexual assault, a sexually violent offense pursuant to the SVPA, N.J.S.A. 30:4-27.26(a), and one count of fourth degree endangering the welfare of a child. Appellant had also pled guilty to third-degree theft in August 1988. Additionally, while incarcerated for the predicate offense, he was subject to thirty-seven disciplinary charges, ten of which were for assault or threat to assault.

Appellant was released from prison on September 6, 1998, and temporarily civilly committed on September 27, 1999, pending a final hearing. On June 29, 2000, after a final hearing, Judge Freedman entered an order for civil commitment pursuant to the SVPA. The record submitted by appellant reveals that subsequent review hearings were held, and appellant was recommitted by orders of July 16, 2001, March 5, 2002, April 23, 2003, December 8, 2008, and November 20, 2009. In our opinion of February 15, 2005, A-5262-02T2, we affirmed the April 23, 2003 order continuing commitment. In our opinion of April 10, 2006, A-6220-04T2, we affirmed a July 25, 2005 order continuing commitment. In our opinion of April 27, 2007, A-2959-06T2, we affirmed a January 2, 2007 order continuing commitment. And in our opinion of June 22, 2009, A-2007-08T2, we affirmed the December 8, 2008 order continuing commitment.

The review hearing that is the subject of this appeal was conducted on November 12, 2009. Judge Freedman rendered an oral opinion on November 18, 2009, and issued his order on November 20, 2009.

At the hearing, the State presented the testimony of Dr. Roger Harris, a psychiatrist, who testified that appellant initially consented to be psychologically evaluated, but when the time came, appellant became agitated and angrily expressed his worry that the tape recording device would not accurately record the interview. Appellant then left the interview room, refusing to be evaluated by Dr. Harris. However, Dr. Harris testified that he had sufficient information to render a medical opinion because he had previously interviewed appellant in 2007.

Dr. Harris testified that appellant "meets several diagnoses" which predispose him to engage in acts of sexual violence, including antisocial personality disorder, borderline intellectual functioning, substance abuse, paraphilia NOS, and trouble controlling his sexual drive. These disorders, according to Dr. Harris, cause appellant "significant difficulty controlling his sexually violent behavior." Dr. Harris concluded that appellant is "highly likely" to re-offend unless recommitted. Dr. Harris's report, prepared on November 10, 2009, and admitted into evidence at the hearing, was compiled based upon a previous report issued by Dr. Harris and supplemented by pre-sentence reports, forensic evaluations, and psychiatric hospitalization records and progress reports. Dr. Harris' report was consistent with his testimony.

The State also presented the testimony of Dr. Nicole Paolillo, a psychologist and author of a report of a panel of psychologists who reviewed appellant's progress and treatment at the Special Treatment Unit (STU). Paolillo interviewed appellant and testified consistent with her report, which concluded that since his commitment to STU, he had "made very minimal gains in treatment," and was experiencing a "significant degree of denial regarding his deviant arousal," which was preventing him from achieving any "meaningful understanding of relapse prevention as it pertains to his risk to re-offend." However, the report noted that appellant arrived at STU "at the lower end of 'highly likely' [to re-offend]" and that if he complied with the treatment recommendations, the panel still viewed him as a "viable discharge candidate."

Appellant presented the testimony of Dr. Christopher Lorah, a psychologist, who performed an evaluation of appellant. Lorah testified, consistent with his report that, even if appellant had a personality disorder, he was not highly likely to sexually re-offend because such a disorder was not indicative of sexually violent behavior absent a sexual disorder such as pedophilia, which, according to Lorah, appellant did not exhibit.

Judge Freedman's sixty-nine page oral opinion thoroughly reviewed the documentary and testimonial evidence. He found that appellant was in denial of his need for treatment, and, after making some initial progress at STU, has since regressed. The judge credited the State's witnesses' testimony and did not credit Lorah's testimony. He concluded as follows:

I find that if he were released today . . . he would have serious difficulty controlling his criminal behavior, and . . . would be highly likely to be engaged in general criminal conduct, drug use, and included in that would undoubtedly be sexually violent conduct as well.

He is aging, the offenses receding into the past as time passes. And I think if he could just break through his denial, and spend some reasonable period of time actually dealing with relapse prevention and ways to avoid reoffending, he might he might get to the point where he would be a reasonable subject for conditional discharge. At the present time, I don't think that's so.

. . . .

These findings are made by clear and convincing evidence, and for all these reasons I'm going to continue his commitment and set a review date of one year[.]

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128.

At the commitment hearing, the State must 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (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. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting 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. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

We are satisfied from our review of the record that Judge Freedman's finding that appellant continues to be highly likely to re-offend and otherwise meets all criteria for continued SVPA commitment is well supported by the record, and we defer to that finding. We affirm substantially for the reasons stated by Judge Freedman in his thorough and well reasoned oral opinion of November 18, 2009.

 
Affirmed.

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

(continued)

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A-1512-09T2

RECORD IMPOUNDED

June 2, 2010