IN THE MATTER OF THE CIVIL COMMITMENT OF T.R.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2249-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.R.K., SVP #286-02.

_____________________________________________

April 29, 2011

Argued April 13, 2011 - Decided

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 286-02.

Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

T.R.K. appeals from an order entered on September 13, 2010, which continued his 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.

A criminal defendant, who has been convicted of a predicate offense to the SVPA, may be subject to an involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).

To warrant commitment of an individual or the continuation of a prior commitment, the State must prove 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); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). In that setting, the court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The State met its burden here.

The record reveals that T.R.K., who is now forty-one years old, has committed offenses that rendered him eligible for commitment. As we explained in an earlier opinion,

T.R.K. is a pedophile with a twenty-year history of sexually deviant behavior. The first incident occurred when T.R.K. was thirteen years of age when he had sexual intercourse with an eight year old child. He was adjudicated delinquent and placed on probation for one year with the requirement that he obtain counseling. The second incident occurred on March 27, 1998. The victim was his girlfriend's seven year old daughter. He was charged with sexual assault and endangering the welfare of a child. On June 2, 1998, he pled guilty to endangering the welfare of a child and was placed on five years probation. The third incident occurred on January 31, 1999. On that date, T.R.K. sexually assaulted his two year old daughter while changing her in a public restroom. He pled guilty to second degree sexual assault and was sentenced to five years imprisonment.

[In re Commitment of T.R.K., No. A-0510-03 (App. Div. Jan. 20, 2006) (slip op. at 2-3).]

In 2003, T.R.K. was civilly committed pursuant to the SVPA based on a finding that he suffers from a mental abnormality in the form of pedophilia, paraphilia not otherwise specified, personality disorder not otherwise specified, narcissistic personality, and that he has a history of alcohol and cocaine abuse; the trial court also found T.R.K. was highly likely to reoffend if not committed. We affirmed that determination by way of an unpublished opinion. Ibid.

T.R.K.'s commitment has been annually reviewed and continued. The last of these review hearings occurred on September 13, 2010, and resulted in the entry of the order in question.

At the review hearing of September 13, 2010, the trial judge heard the testimony of the State's experts, Dr. Rosemarie Vala Stewart and Dr. John Zincone. T.R.K. did not testify and called no witnesses. In an oral opinion delivered at the conclusion of the hearing, Judge Mulvihill recognized that T.R.K. had made improvement in understanding his sexual assault cycle and appeared remorseful. Although of low intelligence, the judge found that T.R.K. had obtained further education, reaching a level between the fifth and sixth grades, and that he had also been engaged in group therapy. The judge found, however, that although there has been progress, T.R.K. "still has lots of work to do." In the final analysis, the judge concluded, based upon his reliance on the testimony of the State's expert witnesses, that if not committed "it's highly likely [T.R.K.] will not control his sexually violent behavior" and that he will reoffend.

In considering the arguments posed in this appeal, our scope of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no reason to intervene. The record more than adequately supports the judge's findings that T.R.K. suffers from mental abnormalities that predispose him to commit sexually violent acts, that he has serious difficulty controlling his behavior, and that he is highly likely to reoffend. We affirm substantially for the reasons set forth in Judge Mulvihill's comprehensive and thoughtful opinion.