IN THE MATTER OF THE CIVIL COMMITMENT OF J.L.N.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2127-09T22127-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.L.N.

SVP-197-01.

________________________________________________________________

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-197-01.

Patrick Madden, 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, J.L.N., now forty-eight years of age, appeals from Judge Mulvihill's December 14, 2009 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend unless confined to the STU and that he should have been granted a conditional discharge as recommended by his psychological expert. We disagree and affirm.

On October 12, 1982, K.S. notified the Asbury Park Police that appellant had entered her apartment and sexually assaulted her. K.S. stated that appellant, her former paramour, entered her apartment uninvited and carried her upstairs against her will, where he forced her to have sex. After K.S. notified the police, appellant was arrested and charged with aggravated sexual assault, sexual assault, burglary, and making terroristic threats.

On November 3, 1982, A.T. notified the Avon police that appellant had sexually assaulted and robbed her. Appellant had entered A.T.'s home while she was sleeping and forced her at knifepoint to have sex with him. He also stole $1,514 worth of items from A.T.'s home. Appellant was arrested the next day and charged with burglary, two counts of aggravated sexual assault, armed robbery, and criminal restraint.

On February 15, 1983, appellant pled guilty to aggravated sexual assault charges arising out of both incidents, and armed robbery. On April 22, 1983, he was sentenced to an aggregate term of thirty-six years with an eighteen-year parole disqualifier. In 1994, the parole disqualifier was reduced to fifteen years. The aggravated sexual assault convictions constituted sexually violent offenses as defined in N.J.S.A. 30:4-27.26.

On August 30, 2001, prior to appellant's release from prison, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. An order for a temporary commitment at the STU was entered on September 6, 2001. A final hearing was held on April 10, 2002, and on April 23, 2002, the court found that appellant was a sexually violent predator and ordered that he be remanded to the STU.

After a review hearing on January 15, 2003, the court found that appellant continued to be a sexually violent predator and ordered his continued commitment. Appellant appealed and we affirmed on October 1, 2004. No. A-2743-02T2. A subsequent review hearing was held on April 28, 2003. The court again found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant appealed, A-5263-02T2, but later withdrew the appeal.

After a March 16, 2004 review hearing, the court found that appellant's risk of recidivism had decreased and directed the STU to develop a conditional discharge plan. Over the ensuing months, appellant was allowed increasing levels of unsupervised movement in the community. Appellant was released from the STU under a conditional discharge order on September 22, 2004. Appellant's conditional discharge was subsequently revoked and he was recommitted to the STU. In our November 21, 2006 opinion affirming the revocation order, we described the circumstances culminating in the revocation:

Less than two weeks later, the State sought to revoke J.L.N.'s conditional discharge on the grounds that he had violated several of its provisions, notably by leaving the State, not reporting to parole and failing to reside at the approved residence. After hearing the evidence, Judge Freedman denied the State's petition [to rescind the conditional discharge] finding that the evidence of violation was insufficient. The judge did, however, order increased restrictions including imposing a curfew and limiting his place of residence to the marital home. A month later, at the request of his parole officer, J.L.N. was ordered to be placed on 24-hour electronic monitoring.

On April 19, 2005, the State made an ex parte application for an order to apprehend J.L.N. and return him to custody based on alleged violations of the conditional release order. Witness testimony presented by the State in support of that application included allegations that J.L.N. had beaten his wife and that his wife's safety was at risk, and that the therapist who had reported this violence to the court could also be in peril. The State contended that the physical aggression toward his wife indicated that he was again entering a sex offense cycle.

Based on that testimony, Judge Perretti granted the State's application to return J.L.N. to the STU pending a hearing. Prior to that hearing, which began on May 11, 2005, the State filed an amended petition for civil commitment setting forth in detail the factual basis for its request that J.L.N.'s conditional discharge be revoked. That amended petition was filed on April 29, 2005.

Judge Freeman heard testimony on June 15 and June 22, 2005 and rendered a decision on July 5, 2005 revoking J.L.N.'s conditional discharge and returning him to the STU.

[In re Civil Commitment of J.L.N. SVP #197-01, No. 6425-04T2 (App. Div. November 21, 2006) (slip op. at 3-5), certif. denied, 190 N.J. 392 (2007).]

After a subsequent review hearing on May 17, 2007, the court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. We affirmed on December 28, 2007, A-4902-06T2, and appellant's petition for certification was denied on March 27, 2008. In re Civil Commitment of J.L.N. SVP #197-01, 194 N.J. 445 (2008).

Another review hearing was held on May 8, June 12 and 13, 2008, after which the court again found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. We affirmed on November 19, 2008. A-5336-07T2. Appellant's petition for certification was denied on June 3, 2009. In re Civil Commitment of J.L.N. SVP #197-01, 199 N.J. 541 (2009).

The review hearing that is the subject of this appeal was held on October 29 and December 14, 2009. The court again found that appellant continued to be a sexually violent predator and ordered on December 14, 2009 that he remain confined to the STU. The court rejected appellant's request for another conditional discharge. Appellant now appeals the December 14, 2009 order.

At the hearing, the State presented the testimony of Dr. Rosemarie Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC), who conducted an interview with appellant, during which he was cooperative. Dr. Stewart formulated her opinions after reviewing various documents including police reports, treatment notes, and past reports by psychologists and psychiatrists. She diagnosed appellant with antisocial personality disorder and made a provisional diagnosis of paraphilia NOS non-consent.

Dr. Stewart noted that appellant was making an effort in treatment, having engaged in modules and cooperated somewhat, but had pulled back to an extent. However, she also noted that appellant had violated some rules of behavior during treatment and had engaged in a fight, which resulted in his being put in Modified Activities Placement (MAP). She further noted that while out on conditional discharge, appellant had been involved in a physical altercation with his wife. Dr. Stewart concluded that appellant needed further treatment before being released. Her report, prepared April 26, 2009 and admitted into evidence, was consistent with her testimony.

The State also presented the testimony of Dr. Roger Harris, a psychiatrist, who evaluated appellant on October 22, 2009, during which appellant was said to be cooperative. Dr. Harris also reviewed treatment and progress reports, as well as reports detailing appellant's sexual offenses. Although he acknowledged that appellant had been active in treatment, he noted that appellant is motivated by deviant arousal, is illogical and has cognitive distortions, and needs a better understanding of his behavior and its motivations. He diagnosed appellant with antisocial personality disorder and paraphilia NOS, and opined that these conditions cause him to have serious difficulty in controlling his sexual offending behavior. He thus concluded that appellant was "highly likely" to reoffend.

Appellant presented the testimony of Dr. Timothy Foley, a psychologist, who interviewed appellant on October 15, 2009. Dr. Foley diagnosed appellant with antisocial personality disorder, but did not find any other diagnoses. He opined that appellant did not meet the criteria for commitment, noting that although appellant had violated the terms of his conditional discharge, he did not commit another sexual offense while on conditional discharge. He recommended that appellant be conditionally discharged into a highly structured program.

Appellant also testified. Judge Mulvihill did not find him to be a credible witness.

Judge Mulvihill's December 14, 2009 oral opinion thoroughly reviewed the documentary and testimonial evidence. He found that continued commitment was necessary. He concluded:

So, I find by clear and convincing evidence that [appellant] has been convicted of a sexually violent offense. The Appellate Division set that forth also in it's [sic] opinion of November 21st, 2006 to unrelated incidents of forcible sexual intercourse, one rape at knife point, . . . fully described before. So that's clear and convincing evidence.

Number two, that he did continues to suffer from a mental abnormality or personality disorder that even his own expert indicates it's Antisocial Personality Disorder. Dr. Harris, . . . a very credible witness, diagnosed [appellant] with Paraphilia NOS, Antisocial Personality Disorder and Dr. Rosemarie Valla-Stewart diagnosed [appellant] with paraphilia NOS, non-consent provisional, Antisocial Personality Disorder, which is clear and convincing evidence that [appellant] continues to suffer from a mental abnormality or personality disorder. And from the testimony of Dr. Harris and from the all of the incidents, reports that are set forth . . . in evidence and the testimony. There . . . have been MAP incidents involving an altercation within the last 18 months involving another resident, physical altercation. There was an . . . earlier incident on MAP where he tried to get some inappropriate materials. He never did get them. And then the . . . third incident was the cell phone. And with the history that he has and the . . . unfortunate experience he had on conditional discharge, with the physical altercation with his wife, no . . . sexual reoffending, but a physical altercation in terms of being part of a cycle.

I find there's clear and convincing evidence that he continues to be highly likely to engage in further acts of sexual violence for control, care and treatment. He is making progress in Phase 3 and hopefully he will continue to make progress. But at this time he has to be confined here at the STU.

And I . . . find that . . . the State has proven by clear and convincing evidence that . . . [appellant] continues to be a threat to the health and safety of others, because of the likelihood of . . . his engaging in sexually violent acts. It's demonstrated by clear and convincing evidence that [appellant] continues to have serious difficulty controlling sexually harmful highly likely he will not control his . . . sexually violent behavior . . . if not confined in the STU.

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) (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. "The appropriate inquiry is to canvas 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 reoffend 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.

By agreement of the parties and with the 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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11

A-2127-09T2

RECORD IMPOUNDED