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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3468-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF R.B.

SVP-520-09.

_________________________

November 22, 2010

Submitted November 10, 2010 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-520-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Nancy C. Ferro, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Appellant R.B. appeals from the February 2, 2009, order that committed him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Appellant's criminal history reflects a longstanding pattern of sexual and other violent offenses, in this State and elsewhere. In February 1998, appellant was convicted in New York of first-degree attempted sexual abuse, New York Penal Law 110 and 130.65(3), and was sentenced to a term of one to three years incarceration. Within twenty-four hours of being released on parole, appellant was accused, again in New York, of another sexual assault. In June 2000, he was convicted of third-degree rape, New York Penal Law 130.25(2), and sentenced to eighteen months to three years in prison. After being released on parole for this second offense in 2004, appellant was charged with failing to register as a sex offender in New York City, New York Correction Law 168-t, a misdemeanor charge to which he entered a plea of guilty. Appellant was subsequently sentenced to a term of six months incarceration.

Appellant's criminal activities neither ended there nor were they confined to New York. In November 2005 although originally indicted for aggravated assault, N.J.S.A. 2C:12-1(b)(7); burglary, N.J.S.A. 2C:18-2; and terroristic threats, N.J.S.A. 2C:12-3(b) appellant was convicted of the crime of burglary and sentenced to four years incarceration in New Jersey. Appellant's prison stay was not uneventful. He was adjudicated on at least five occasions of committing the following prohibited acts as an inmate: indecent exposure, N.J.A.C. 10A:4-4.1(.053), and making sexual proposals or threats to another, N.J.A.C. 10A:4-4.1(.052).

In January 2009, the State filed a petition for civil commitment pursuant to the SVPA. The State presented only one witness at the hearing that was conducted in February 2009, psychiatrist Dr. Sarah Gleacher, M.D. Appellant elected not to testify or call witnesses on his behalf. Dr. Gleacher reviewed appellant's history and archival records, but was unable to interview appellant for more than a brief encounter because he refused to speak with her.

At the hearing, Dr. Gleacher recounted her analysis of appellant's discovery file, prison records, police reports, and background information. After a comprehensive review, lacking only an interview with appellant, Dr. Gleacher concluded that appellant "suffers from a mental abnormality which predisposes him to sexual[ly] reoffend." Specifically, appellant was diagnosed as suffering from "paraphilia NOS" and an "anti-social personality disorder." Noting that these two conditions were not likely to spontaneously remit, Dr. Gleacher ultimately opined that appellant would have "serious difficulty controlling his sexual offensive behavior" and displays a "high risk to sexually reoffend in the foreseeable future if not committed . . . for treatment."

Judge Philip M. Freedman rendered a comprehensive oral opinion, which canvassed the documentary record and outlined in detail the court's findings regarding Dr. Gleacher's testimony and opinions. The court described Dr. Gleacher's view of appellant as that "he's an untreated, repetitive sex offender," noting that the record "clearly support[ed] her view." Moreover, the court held that "I don't think there's any question that [appellant] would be committing similar offenses, both sexual and non-sexual, but definitely committing similar sexual offenses very quickly if he were released." Accordingly, Judge Freedman found that "the State has met its burden and that [appellant] should be committed." A review date was set for January 2010.

On appeal, appellant raises the following two points for our consideration:

POINT I: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.B. IS A SEXUALLY VIOLENT PREDATOR AND AT PRESENT THE RISK OF RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY COMMITMENT.

POINT II: R.B. AND OTHERS SIMILARLY SITUATED SHOULD BE ALLOWED TO ENTER A PROGRAM INVOLVING NOT ONLY THERAPY BUT WHICH WOULD ALSO INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

We do not find either of appellant's arguments persuasive, and affirm substantially for the reasons expressed by Judge Freedman in his oral opinion. We add only the following brief comments.

Our Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., ___ N.J. ___, ___ (2010) (slip op. at 11); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality. See In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 97 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z., 173 N.J. 109, 125 (2002).

Under the SVPA, an involuntary civil commitment can be ordered following 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. 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." In re W.Z., supra, 173 N.J. at 132; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); see also N.J.S.A. 30:4-27.32(a).

The range of our appellate review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." 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)); see also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). "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).

Notwithstanding the declination of appellant to be interviewed by Dr. Gleacher, and the fact that his crime in New Jersey was not a sexual offense, we are satisfied that Judge Freedman's findings are well-documented and supported by the record. Appellant's history of sexual offenses that commenced when he was nineteen years old, together with the sexual nature of the recently-adjudicated prohibited acts while in prison, fortify Judge Freedman's conclusion that appellant "would be committing similar offenses, both sexual and non-sexual, but definitely committing similar sexual offenses very quickly if he were released." We defer to those findings and will not disturb them.

Affirmed.