IN THE MATTER OF THE CIVIL COMMITMENT OF J.L.N.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2251-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.L.N., SVP #197-01.

_________________________________________________

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. 197-01.

Jo Astrid Glading, Assistant Deputy Public Defender, 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

J.L.N. appeals from an order entered on November 15, 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). 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 J.L.N. is now forty-eight years old. In 1983, he pled guilty to two separate incidents of aggravated sexual assault, as well as other offenses, and was sentenced to an aggregate term of thirty-six years with an eighteen-year period of parole ineligibility, which was later reduced to fifteen years. These convictions constituted sexually violent offenses as defined by N.J.S.A. 30:4-27.26.

The State first obtained J.L.N.'s temporary civil commitment in 2001; a hearing in 2002 led to a finding that J.L.N. was a sexually violent predator requiring his admission to the STU. The history of this matter reveals that J.L.N. was conditionally discharged in 2004; that discharge, however, was later revoked, and the order revoking discharge was affirmed. In re Commitment of J.L.N., No. A-6425-04 (App. Div. Nov. 21, 2006), certif. denied, 190 N.J. 392 (2007). Subsequent orders continuing commitment have been affirmed. See In re Commitment of J.L.N., No. A-4902-06 (App. Div. Dec. 28, 2007), certif. denied, 194 N.J. 445 (2008); In re Commitment of J.L.N., No. A-5336-07 (App. Div. Nov. 19, 2008), certif. denied, 199 N.J. 541 (2009); In re Commitment of J.L.N., No. A-2127-09 (App. Div. June 2, 2010), certif. denied, 204 N.J. 41 (2010).

The present appeal concerns the entry of an order on November 15, 2010, which continued J.L.N.'s commitment. In this appeal, J.L.N. argues the judge's findings were against the weight of the evidence.

At the two-day review hearing, Judge Freedman heard the testimony of the State's witnesses, Dr. Heidi Canataro, a member of the Treatment Progress Review Committee (TPRC), and Dr. Maryanne DeSantis, as well as J.L.N.'s witnesses, Dr. Timothy P. Foley and an investigator for the public defender's office. J.L.N. also testified. At the conclusion of the hearing, Judge Freedman provided a thorough oral decision, in which he described why he found credible the State's witnesses' provisional diagnoses of paraphilia not otherwise specified,1 and their opinion that J.L.N. was highly likely to reoffend.

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 abuse of discretion. The record more than adequately supports the judge's determination that J.L.N. 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 Freedman's thoughtful oral opinion.2

1J.L.N. argues that the judge's view of the evidence may have exceeded the bounds of the experts' testimony because he expressed a view of J.L.N.'s condition that was less "provisional" than the experts' views. In fact, the record reflects that the judge was recognizing what the entire history of this matter reflects: that other experts had expressed the opinion, which we observed in our unpublished opinion in this matter of June 2, 2010, see J.L.N., supra, slip op. at 7, that J.L.N. suffered from antisocial personality disorder and paraphilia not otherwise specified without a suggestion that this diagnosis was provisional. Certain comments in the judge's opinion suggest that he agreed with the earlier opinions and, therefore, questioned why the experts who testified at the hearing in question expressed their opinion in "provisional" terms. We do not view the judge's comments regarding his view of the record as suggesting that he did not credit the testimony of the experts called to testify at the hearing.

2J.L.N. also argues that the judge's decision was "contaminated" by the prior failed conditional discharge. We find insufficient merit in that argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).