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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2105-09T22105-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.M.

SVP-308-03.

___________________________________

Argued May 24, 2010 Decided June 2, 2010

Before Judges Lisa and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-308-03.

Mary T. Foy, Assistant Deputy Public Advocate, argued the cause for appellant (Stefanie A. Brand, Acting Public Advocate, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant S.M., forty-eight years of age, appeals from Judge Mulvihill's December 14, 2009 order continuing his involuntary civil commitment in the New Jersey Special Treatment Unit (STU) 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 Mulvihill'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 April 1996, victim R.D. met appellant at a local lounge. As R.D. was walking home through a vacant lot, appellant came up behind her and pulled her into an abandoned house. She screamed for help, but appellant produced a utility blade and told her to stop screaming or he would kill her. A struggle ensued, and appellant raped R.D. before she was finally able to escape. Appellant pled guilty to second-degree sexual assault and third-degree possession of a controlled dangerous substance (CDS), and was sentenced on August 22, 1997, to ten years at the Adult Diagnostic and Treatment Center (ADTC) and community supervision for life.

In addition to the predicate offense, the petition sets forth other crimes committed by appellant. In March 1986, appellant was charged with attempted rape, assault, and criminal possession of a weapon in Erie County, New York. He was sentenced to a prison term not to exceed five years. He was paroled in September 1988, but parole was revoked in June 1989.

In December 1988, appellant was charged with first-degree rape in Buffalo, New York. As a result of a plea agreement, he pled guilty to third-degree attempted burglary and was sentenced to one-and-one-half to three years in prison. The charges stemmed from an incident in which appellant allegedly followed a woman into her apartment, choked her, held her at knifepoint threatening to kill her, and raped her.

In January 1993, appellant was charged with aggravated sexual assault and multiple weapons offenses stemming from an incident in which he raped another woman at knifepoint. He pled guilty to lesser charges and served 548 days in jail.

In March 2003, prior to his release for the predicate offense, the State petitioned for civil commitment pursuant to the SVPA. He was temporarily civilly committed to the STU on March 20, 2003, and after an initial hearing, was committed on April 10, 2003.

Subsequent review hearings were held, and appellant was recommitted by orders of March 29, 2004 and August 1, 2005. We affirmed the latter commitment by our opinion of April 16, 2007, A-6426,04T2, certif. denied, 192 N.J. 74 (2007). A December 20, 2007 recommitment was reversed and remanded for a new hearing before a different judge by our opinion of September 3, 2008, A-2384-07T2. We then affirmed a November 5, 2008 recommitment by our opinion of June 22, 2009, A-1703-08T2.

The review hearing that is the subject of this appeal was conducted on October 8, 2009. Judge Mulvihill rendered an oral opinion on December 14, 2009, and issued an order the same day.

At the hearing, the State presented the testimony of Dr. Dean M. De Crisce, a psychiatrist, who interviewed and evaluated appellant and issued an expert report. Dr. De Crisce testified that appellant exhibits both paraphilia and anti-social personality disorder. He testified that although appellant had made some advances in his treatment programs at STU, he had not "achieved enough treatment and understanding to mitigate these disorders," which affect appellant emotionally, cognitively, and volitionally and make him highly likely to re-offend if not committed to the STU. Dr. De Crisce's report is consistent with his testimony.

The State also presented the testimony of Dr. Jamie R. Canataro, a psychologist and author of a report of a panel of psychologists who reviewed appellant's progress and treatment at the STU. Dr. Canataro diagnosed appellant with paraphilia NOS and severe antisocial personality disorder. She testified that appellant's treatment at the STU "appears to have stagnated" and he has gained "little knowledge into his sex offending dynamics." Dr. Canataro's report is consistent with her testimony. It states that appellant's "risk to sexually recidivate in the future is likely to be toward the higher end."

Appellant presented the testimony of Dr. Pius K. Essandoh, a psychologist who provided sex offender treatment to appellant at the STU since 2006. Dr. Essandoh testified that he was on vacation at the time the panel of psychologists reviewed appellant's progress and treatment, culminating in the report authored by Dr. Canataro. Dr. Essandoh said that trust is a "very major part of [appellant's] treatment" and that he had successfully built trust with appellant. Dr. Essandoh concluded that if he had been present when the panel reviewed appellant's progress, appellant's "presentation" likely would have been better than that reflected in Dr. Canataro's report. Dr. Essandoh did not submit an expert report.

Judge Mulvihill's oral opinion thoroughly reviewed the documentary and testimonial evidence. He found the testimony of all three witnesses "very credible." He found by clear and convincing evidence that appellant "continues to suffer from a mental abnormality personality disorder, Axis I paraphilia NOS, Axis II anti-social personality disorder." Judge Mulvihill concluded that appellant is predisposed to sexual violence and is "highly likely to engage in further acts of sexual violence if not confined" in the STU. The judge also denied appellant's motion to graduate him to the next phase of treatment at the STU. He also noted that it was unfortunate that Dr. Essandoh was not present when the panel reviewed appellant's progress at STU, and ordered that at the next panel review, all appellant's treatment providers must be present.

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 Mulvihill'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 Mulvihill in his thorough and well reasoned oral opinion of December 14, 2009.

 
Affirmed.

All the documents in the record refer to appellant as S.B.M., however the order appealed from refers to him as S.M.

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.

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A-2105-09T2

RECORD IMPOUNDED