IN THE MATTER OF THE CIVIL COMMITMENT OF J.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2128-09T22128-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.B. SVP-424-06.

________________________________________________________________

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-424-06.

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

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

PER CURIAM

Appellant, J.B., now thirty-four years of age, appeals from Judge McLaughlin's December 7, 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, J.B. argues that the State failed to prove by clear and convincing evidence that he was highly likely to re-offend, and that he therefore no longer meets the criteria for commitment. We disagree and affirm.

Appellant's history reflects a longstanding pattern of sexual offenses. On September 14, 1994, appellant went to the house of his former girlfriend, A.J., and sexually assaulted her. She claimed that appellant threw her on the bed and put his hand over her face and nose, cutting off her breath, and that she struggled so hard that she kicked a hole in the wall. The next day, appellant was arrested and charged with sexual assault.

On or about September 21, 1994, M.S. met appellant in the lobby of a police station and walked to a location where appellant pushed her into the back seat of a vehicle and forcefully sexually assaulted her. Appellant was arrested and charged with sexual assault with force. On November 9, 1995, appellant was convicted of two counts of sexual assault, for A.J. and M.S., and sentenced to five years at Avenel Diagnostic and Treatment Center.

Subsequently, on November 4, 2003, K.H. told police that she had accepted a ride home from appellant. Appellant pulled over and asked K.H. if she wanted to talk in the back seat, and when K.H. declined, appellant pulled her out of the car and threw her into the back seat. There appellant sexually assaulted K.H. Appellant was arrested and charged with sexual assault and criminal sexual contact, and was convicted on March 24, 2005 of criminal sexual contact in the fourth-degree and sentenced to eighteen months in prison.

Appellant's convictions were the result of the commission of sexually violent offenses as defined in N.J.S.A. 30:4-27.26. On February 1, 2006, an order was entered requiring appellant to submit to a psychiatric evaluation on February 3, 2006 at the STU. Appellant failed to appear for the court ordered evaluation, and pursuant to a court order of February 9, 2006, appellant was arrested and taken to the Anne Klein Forensic Center.

Subsequently, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. On March 31, 2006, the Honorable Serena Perretti, J.S.C. found probable cause to believe that appellant was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. Appellant was temporarily committed to the STU on the same day. A final hearing was held on October 16-18, 2006, and on November 1, 2006, Judge Perretti found that the State's evidence established that appellant was a sexually violent predator and, as a result, the court ordered that he be remanded to the STU.

Appellant appealed the court's decision of November 1, 2006. We affirmed on July 31, 2008, No. A-1447-06T2. A review hearing was subsequently held on December 8, 2008, and on the same date, Judge Perretti determined that appellant continued to be a sexually violent predator in need of confinement in the STU. Another review hearing was held on November 30, 2009, and on December 7, 2009, Judge McLaughlin determined that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant now appeals from the December 7, 2009 decision.

At the November 30, 2009 hearing, the State presented the testimony of Dr. Howard Gilman, a psychiatrist, who testified that appellant refused to participate in an interview with him. Nevertheless, Dr. Gilman testified that he was able to render his opinion within a reasonable degree of psychiatric certainty based on a review of various legal, psychiatric, psychological, and treatment reports containing historical data. Based on these materials, Dr. Gilman diagnosed appellant with antisocial personality disorder, and testified that this diagnosis predisposes appellant to commit acts of sexual violence based on his history. He also diagnosed appellant with having a dependence on various substances, including cocaine, alcohol, and cannabis. Dr. Gilman opined that appellant is "at a high risk to sexually reoffend" unless recommitted. Dr. Gilman's report, prepared November 20, 2009 and admitted into evidence, was consistent with his testimony.

The State also presented the testimony of Dr. Nicole Paolillo, a psychologist. After appellant refused to participate in an interview, Dr. Paolillo formulated an opinion about appellant after reviewing his case history and testified that she could render an opinion within a reasonable degree of psychological certainty. She ruled out diagnoses of paraphilia NOS non-consent and depressive disorder NOS, but diagnosed appellant with antisocial personality disorder and drug and alcohol abuse. Dr. Paolillo thus recommended that appellant begin the process of engaging in treatment given his limited experience in this regard. Her testimony was consistent with her report, prepared October 21, 2009 and admitted into evidence, in which she also concluded that appellant posed a high risk of recidivism.

Appellant did not produce any witnesses on his behalf at the November 30, 2009 hearing. Judge McLaughlin's December 7, 2009 oral opinion thoroughly reviewed the documentary and testimonial evidence, and he concluded:

I find from the evidence that the State has proven clearly and convincingly that [appellant] has been convicted of sexually violent offenses, that he suffers from an abnormality or personality disorder; namely, antisocial personality disorder, which is supported by the opinion of both doctors who testified; Dr. Gilman, psychiatrist; Dr. Paolillo, a psychologist.

. . . .

Through the unrefuted testimony of both doctors, clearly and convincingly show that he's suffering from an antisocial personality disorder. This causes him serious difficulty to control his sexually violent behavior and that he presently has that difficulty and that he has refused any treatment to rectify or modify his behavior.

Dr. Gilman has rendered an opinion based upon his analysis and review of the records that the antisocial personality disorder is a high risk factor to reoffend and combined with his substance abuse, increases that risk factor so that it is highly likely that he will reoffend.

Accordingly, I find that the State has proved its case by clear and convincing evidence and that [appellant] continues to be a sexually violent predator and in need of involuntary civil commitment in a facility for the control, care, and treatment.

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 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 that Judge McLaughlin's findings are well-supported by the record, and we defer to those findings. We affirm substantially for the reasons stated by Judge McLaughlin in his thorough and well-reasoned oral opinion of December 7, 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.

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A-2128-09T2

RECORD IMPOUNDED