IN THE MATTER OF THE CIVIL COMMITMENT OF M.D.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2619-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

M.D.C., SVP-212-01.

_________________________________

September 17, 2010

Argued July 13, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-212-01.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant M.D.C. (Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney).

PER CURIAM

M.D.C. appeals from an order entered on September 17, 2009, continuing his involuntary civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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.

[T]he State must prove that 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.

[In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will re-offend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.

M.D.C. was initially committed to the STU by temporary order entered on November 16, 2001, and thereafter a final judgment by stipulation committing him to the STU was entered on April 11, 2002. The predicate offense for which appellant was committed to the STU arose out of his August 1993 attack upon a three-year-old during which appellant cut the victim's penis. He received a probationary disposition until age nineteen with additional conditions that included undergoing re-evaluation, participating in a formal sexual assault program, undergoing evaluation at a neurology center, and receiving psychotherapy, if appropriate, for anger management. He subsequently pled guilty to aggravated assault with a weapon and stalking in May 1995 and received an aggregate six-year custodial term. He was discharged from New Jersey State Prison in 2000 and civilly committed, pursuant to N.J.S.A. 30:4-27.1 and Rule 4:74-7, to the Ann Klein Forensic Center. In 2001, the State moved for appellant's civil commitment pursuant to the SVPA. An order temporarily committing M.D.C. to the STU was entered on November 16, 2001. A final hearing on the petition occurred on April 11, 2002, at which M.D.C. stipulated to his continued commitment. On September 23, 2003, appellant once again stipulated to his continued commitment to the STU. By order dated March 11, 2004, the court continued appellant's commitment. Appellant appealed and we issued an opinion directing his release. Upon reconsideration, we subsequently vacated our earlier decision and affirmed the trial court's order continuing M.D.C.'s commitment. In re Commitment of M.X.C., No. A-4707-03 (App. Div. December 19, 2006), certif. denied, 192 N.J. 70 (2007).

At his 2009 hearing, which is the basis of the present appeal, the State presented testimony from Dr. Roger Harris, a psychiatrist, and Dr. Jamie Canataro, a psychologist. Defense counsel stipulated to the qualifications of both doctors. Defendant did not testify or produce witnesses on his behalf.

Dr. Harris testified that because M.D.C. refused to meet with him, his report and findings were based upon his review of M.D.C.'s records that included Treatment Progress Review Committee (TPRC) reports, treatment team reports, prior clinical certificates, and treatment records from the Department of Corrections. He diagnosed appellant as suffering from antisocial personality disorder, ruling out sexual sadism, substance abuse, antisocial personality disorder with borderline traits, and a non DSM-IV diagnosis of psychopathy. He explained that "ruling out sexual sadism" . . . "means that there are very strong indications that he has sexual sadism, but the problem is that [appellant] hasn't really endorsed any of that. And since I did not get a chance to speak to him, I listed it as rule out."

Dr. Harris testified that he based his opinion that appellant suffered from antisocial personality disorder upon evidence in the record that reflected impulsivity on the part of appellant, his failure to conform to societal norms as evidenced by how he has treated people, the way he treated his cell mate, or his willingness to threaten individuals. Addressing the psychopathy disorder, Dr. Harris expressed the view that appellant's score on the Static-991 placed him in the moderate to high category to sexually re-offend. He explained that appellant's "sexual interest in terms of sadism puts him at risk, given that he appears to have a deviant arousal that puts him at risk to sexually re[-]offend." Dr. Harris further opined that appellant's "inability to self-regulate, his childhood history, his -- the fact that he offended sexually as a juvenile, his poor cognitive coping styles, all of those factors place him at a higher risk than what the Static would estimate."

Under cross-examination, Dr. Harris acknowledged that appellant had participated in and completed a number of modules, but noted that because appellant remained in Phase II, he had not made that much progress. Nor was his opinion altered by the fact that appellant denied committing the offense against the three-year old and had passed a polygraph.

Dr. Canataro testified that as a member of TPRC, she had the opportunity to review appellant's progress notes and treatment. She testified that M.D.C. was attempting to participate in the Phase II program, which she characterized as the "rapport[-] building phase." She expressed the opinion that there was enough evidence to diagnose sexual sadism and expressed the view that appellant "derives sexual excitement from the suffering of others," pointing to the penis cutting incident as well as another incident involving appellant's cellmate at the State Prison.

At the conclusion of the hearing, Judge John A. McLaughlin rendered an opinion in which he found that M.D.C. is a sexually violent predator in need of treatment and at a high risk to re-offend if not confined to the STU.

During oral argument before us, M.D.C. argued that there is an absence of any sexual overtones associated with any of the offenses for which he has been convicted. We disagree.

M.D.C. assaulted a three-year-old boy in a particularly violent and painful manner by cutting the boy's penis. His records disclose that he has expressed interest in bondage and sadomasochistic behavior. During the course of the stalking incident, M.D.C. reportedly made lewd gestures towards his victim. He also admitted to beating a cellmate by striking the victim's genitalia and admitted that he obtained an erection during the assault. Further, his treatment records reflect his continued failure to follow treatment recommendations.

Our review of Judge McLaughlin's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge McLaughlin's factual and legal conclusions. We affirm substantially for the reasons stated in his oral opinion, which is supported by substantial, credible evidence. R. 2:11-3(e)(1)(A).

Affirmed.

1 The Static-99 is an actuarial instrument intended to be a measure of long-term risk potential. http://www.assessments. com/catalog/STATIC_99.htm (last visited Sept. 10, 2010).