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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1454-11T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.D., SVP-581-10.

______________________________

December 10, 2012

Argued August 6, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-581-10.

Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for appellant R.D. (Joseph E. Krakora, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

In this appeal, R.D. appeals from an order involuntarily committing him to the Special Treatment Unit (STU) as a sexually violent predator, in accordance with the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant contends the State failed to carry its burden of proof. We disagree and affirm.

We commence our review of this appeal with a brief discussion of the burden of proof assigned to the State by the SVPA and the scope of our review. An involuntary civil commitment pursuant to the SVPA 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 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 . . . will not control his . . . sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his . . . present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). We may modify an order of commitment "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).

On August 22, 2010, as R.D. was approaching the conclusion of a seven-year term of imprisonment following his 2004 conviction for second-degree sexual assault, he was evaluated to determine if he was eligible for commitment pursuant to the SVPA. Dr. Sureshbabu Kurra, a psychiatrist, completed a clinical certificate identifying R.D. as a sexually violent predator who "suffers from a mental abnormality (as defined by the [SVPA]) or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." Specifically, Dr. Kurra diagnosed R.D. as suffering from pedophilia, exhibitionism, major depression, antisocial personality disorder, and hypertension. The doctor noted that R.D. continues to show "poor understanding of sexual deviancy and poor participation in the treatment program" and opined that R.D. had a moderate to high risk of sexual reoffense.

R.D. also underwent a clinical evaluation performed by Dr. Marina Moshkovich, a psychiatrist, who diagnosed R.D. as suffering from pedophilia, exclusive prepubertal girls; exhibitionism; anxiety disorder, NOS (not otherwise specified); narcissistic personality disorder; and hypertension. The doctor found that R.D. "has serious character pathology that will interfere with his adjustment to community" and had a moderate to high risk for sexual reoffense. Dr. Moshkovich recommended R.D.'s commitment to a secure facility for control, care and treatment.

The initial commitment hearing was conducted on March 8, 2011 before Judge Bruno Mongiardo. The State presented two witnesses: Dr. Dean M. DeCrise, a board certified psychiatrist, and Dr. Rosemarie Vala Stewart, a clinical psychologist. R.D. presented no witnesses, but testified on his own behalf.

Dr. DeCrise testified that he twice attempted to meet with R.D., but R.D. declined to meet with him. Hence, his evaluation was based on the voluminous records provided to him. These records included police reports and treatment notes from his commitment at the Adult Diagnostic Treatment Center (ADTC) located in Avenel. He diagnosed R.D. as suffering from pedophilia, exclusive type, attracted to young girls, as evidenced by the history of repeat sexual offenses involving girls ranging in age from eight to twelve, and R.D.'s admission that he was attracted to children. The doctor explained that the "exclusive type" characterization was added to the diagnosis because there was no evidence in R.D.'s history that he experienced romantic relationships with females in his age group. He opined that R.D. was predisposed to sexual violence and had no ability to control his behavior. He concluded, to a reasonable degree of medical certainty, that R.D. suffered from mental abnormalities that affected his cognitive, volitional and emotional capacities, to the extent that he was highly likely to sexually reoffend if not maintained in a secure facility where he could be controlled and receive care and treatment.

Dr. Stewart testified that she interviewed R.D. on February 1, 2011, in addition to considering the records provided to her. She expressed the opinion, within a reasonable degree of psychological certainty, that R.D. suffers from pedophilia and exhibitionism and that these conditions affected his ability to control his behavior, thereby predisposing him to commit sexually violent acts. She noted further that his propensity to reoffend was not necessarily limited to an uncontrolled environment, but included circumstances when he was under legal scrutiny at the ADTC. Further, because the record revealed that he last offended when he was sixty-three years old, his advancing age could not be considered as a factor that would minimize the risk that he would reoffend. She concluded that R.D. remained at a high risk to engage in future acts of deviant sexual behavior if returned to the community.

Judge Mongiardo, in a written opinion, credited the testimony of the State's two witnesses and, together with the documentary evidence admitted into evidence without objection, found that the State proved, by clear and convincing evidence, that R.D. is a sexually violent predator in need of involuntary civil commitment.

The only issue at the initial commitment hearing is whether R.D. is a sexually violent predator, within the meaning of the SVPA. The SVPA defines a sexually violent predator as "a person who has been convicted . . . of a sexually violent offense . . . and 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. We are satisfied the findings and legal conclusions reached by Judge Mongiardo that R.D. is a sexually violent predator are well-supported by the record and we discern no basis to disturb these findings.