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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2184-09T22184-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.J.

SVP-378-04.

___________________________________

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-378-04.

Patrick Madden, Assistant Deputy Public Advocate, argued the cause for appellant (Stefanie A. Brand, Acting Public Advocate, attorney).

Cindi Seider Collins, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant S.J., fifty-eight years of age, appeals from Judge McLaughlin's December 16, 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 McLaughlin'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 reoffend, and he therefore no longer meets the criteria for commitment. We disagree and affirm.

The petition for civil commitment described the following predicate offense: On October 16, 1985, appellant entered the residence of twenty-two-year-old victim C.E. in Edison. Appellant proceeded to rape C.E. at gunpoint, stole some money, confined C.E., her mother, and her mother's four-year-old grandson in the closet, and left the residence. Appellant was charged with aggravated sexual assault, armed robbery, burglary, three counts of criminal restraint, terroristic threats, and possession of a weapon for an unlawful purpose. He was found guilty by a jury and sentenced to twenty-five years in prison.

While incarcerated, appellant was convicted in August 1990 of fourth-degree criminal sexual contact stemming from a May 1986 charge that he exposed himself to fifty-one year old J.Z. He was sentenced to time served, approximately 1571 days. Also while in prison for the predicate offense, he was convicted of escape and sentenced in October 1990 to a term concurrent with the sentence for the predicate offense.

In addition to the above offenses, the petition sets forth appellant's extensive prior criminal history. In November 1974, he was found guilty of simple assault and fined. In November 1976, he was sentenced to one year in jail for a California robbery. In October 1977, he was charged and convicted of receiving a stolen vehicle and sentenced to eighteen months plus probation. That sentence was deferred until 1980, and he was given leave to seek reconsideration of the sentence. However, in December 1979, he violated probation on a breaking and entering conviction which occurred in September 1978, and was sentenced to eighteen months plus probation. Furthermore, from 1979 to 1980, appellant was convicted of and received various sentences for breaking and entering, atrocious assault, and threatening to take a life.

In October 2004, 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 by order of October 1, 2004. He was then committed by order of May 23, 2005 and his commitment was continued by order of May 4, 2006. We affirmed both of those orders by our single opinion of April 26, 2007. A-4994-04T2 and A-5771-05T2. Appellant's commitment was continued by order of January 11, 2008, and we affirmed that order by our opinion of June 20, 2008. A-2510-07T2. We then affirmed a December 23, 2008 order of continued commitment by our opinion of June 19, 2009. A-2463-08T2.

The review hearing that is the subject of this appeal was conducted on December 9, 2009. Judge McLaughlin rendered an oral opinion on December 16, 2009, and issued an order the same day.

At the hearing, the State presented the testimony of Dr. Indra K. Cidambi, a psychiatrist who interviewed appellant and prepared an expert report. Dr. Cidambi testified that appellant is not meaningfully engaged in his treatment at STU in that he "has difficulty seeing himself as a sexual predator." She said he suffers from mental abnormalities which predispose him to sexually reoffend. She diagnosed him with paraphilia, exhibitionism (relating to his urges to expose himself to women), drug and alcohol abuse, and "personality disorder NOS with antisocial features." The combined effect of these disorders, according to Dr. Cidambi, is to impair appellant's emotional, volitional, and cognitive capacities, making him "highly likely to sexually re-offend, if not confined to this structured treatment." She opined that he has not made sufficient progress in treatment to "control his acting out on these disorders." Dr. Cidambi's report is consistent with her testimony.

The State also presented the testimony of Dr. Nicole Paolillo, a psychologist and author of the report of the Treatment Progress Review Committee (TPRC). Dr. Paolillo diagnosed appellant with paraphilia NOS, exhibitionism, alcohol abuse, and personality disorder NOS (with antisocial/psychopathic traits). She testified that there is a "significant disparity between [the TPRC's] perspective on [appellant] and his own perspective on himself," and that appellant "does not acknowledge a meaningful sexually deviant arousal." She testified that appellant is in need of more treatment at STU. Appellant presented no witnesses on his behalf.

Judge McLaughlin's oral opinion reviewed the documentary and testimonial evidence. He concluded that the State proved by clear and convincing evidence that appellant suffers from mental abnormalities and personality disorders which "cause him serious difficulty controlling his largely sexually violent behavior, such that it is highly likely that he will re-offend in the reasonably foreseeable future." Accordingly, the judge ordered appellant recommitted to 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) (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 McLaughlin'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 McLaughlin in his thorough and well reasoned oral opinion of December 16, 2009.

 
Affirmed.

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

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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A-2184-09T2

RECORD IMPOUNDED