IN THE MATTER OF THE CIVIL COMMITMENT OF G.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0454-12T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.M. SVP-196-01.

_______________________________

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-196-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant G.M. (Joseph E. Krakora, Public Defender, attorney).

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

PER CURIAM

G.M., who is now fifty-one years of age, appeals from a June 19, 2012 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I.

G.M.'s criminal behavior began in the 1980s when G.M. was arrested and convicted, on separate occasions, for burglary, larceny, and simple assault. G.M. was first charged with a sexual offense when arrested for sexual assault on two occasions in 1989; these charges were dismissed. On November 12, 1992, G.M. was arrested and charged with aggravated sexual assault, sexual assault, criminal sexual contact, child abuse, and endangering the welfare of a three-year-old child. On December 9, 1993, G.M. pled guilty to third-degree child abuse admitting he digitally penetrated the child his paramour was babysitting and attempted to touch her one-year-old sister. He requested to withdraw his guilty plea, stating he took the plea to prevent his paramour from being charged. The motion was denied and he was sentenced to three years in prison.

The predicate offense for which G.M. is currently committed related to an October 24, 1997 arrest for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. G.M.'s victim, his daughter, then age eight, was discovered to have venereal warts. The child stated she had been sexually abused by G.M. in 1993. According to the victim, she was lying on her mother's bed reading a book when G.M. took off his clothes, pulled off the victim's pants, and penetrated

her vagina and anus with his penis. When the victim began to cry, G.M. placed a sock in her mouth. G.M. also ejaculated in the child's mouth. The victim was fearful of reporting the incident because G.M. threatened violence if she told anyone. G.M. pled guilty to second-degree sexual assault on September 16, 1998, for which he was sentenced to a five-year term of confinement, to be served at the Adult Diagnostic and Treatment Center (ADTC).

At the expiration of his criminal sentence, the State moved for G.M.'s civil commitment under the SVPA. A temporary order of commitment was entered on September 6, 2001, followed by an order of commitment on July 8, 2002. Annual review hearings have resulted in the continuation of G.M.'s civil commitment.

The most recent review of G.M.'s status was held on June 18, 2012, before Judge Philip M. Freedman. Testimonial evidence included only the State's expert, Howard Gilman, M.D., a psychiatrist. Additionally, documentary evidence was admitted, which included G.M.'s STU treatment notes and the annual report of the STU's Treatment Progress Review Committee (TPRC) prepared on behalf of G.M.

G.M. refused to be interviewed by Dr. Gilman. Consequently, Dr. Gilman reviewed available documents

customarily used by experts in the field to formulate his medical opinions and diagnosis.

Considering whether G.M. was in need of further treatment at the STU or could be considered for release, Dr. Gilman noted several bases supported his opinion G.M. was highly likely to reoffend if released. Based on historical material, Dr. Gilman diagnosed G.M. as suffering from "[p]edophilia, sexually attracted to girls, non-exclusive type[.]" He also suffers from alcohol dependence, which is in institutional remission. Finally, he has "a personality disorder[,] not otherwise specified[,] with antisocial features." The expert opined the combination of pedophilia and personality disorder with antisocial features increases the likelihood of reoffense as compared to a person suffering from only one disorder. Alcohol dependence further increased G.M.'s risk.

Dr. Gilman noted, although these conditions do not "spontaneously remit[,]" a person can learn how to not act on these impulses through treatment. However, G.M. has refused treatment. G.M. generally denies culpability for the sexual offenses for which he was convicted. Since being placed in the STU in September 2001, G.M. has "done poorly . . . [,] he actually hasn't entered treatment[] and has . . . consistently been on treatment refusal status." G.M. is in phase one of

treatment and regularly attends orientation group meetings, in which his participation was "described as vacillating between appropriate and complaining." As a result of these disorders, Dr. Gilman opined G.M. is affected cognitively and/or volitionally and is predisposed to sexual violence and has serious difficulty controlling his sexual offending behavior.

Dr. Gilman had conducted and reviewed the results of the Static 99R, on which G.M. scored a five, suggesting "moderately[-]high risk to sexually reoffend" if released from the STU. Dr. Gilman opined G.M.'s mental health conditions and lack of treatment make him highly likely to reoffend, requiring his continued civil commitment in the STU.

On cross-examination, Dr. Gilman agreed G.M.'s general behavior in the STU was respectful, and not problematic. He does participate in group meetings and offers appropriate feedback. Further, his "oppositional behavior" was limited to denying he committed any sexual offenses and was in need of treatment. In response to additional inquiry from Judge Freedman, Dr. Gilman stated, even if G.M. continues to repudiate his need for treatment, he could participate and "make use of that treatment, whether or not he ever overtly admits to having sexually offended." Dr. Gilman assumed G.M. committed the offenses for which he was convicted, stating "it's very hard to

accept" G.M.'s explanation that he pled guilty "to avoid embarrassment to his family[,]" which was illogical when he pled guilty to "a pedophilic sexual offense" of fondling his four-year-old daughter for his own sexual gratification.

Rejecting the premise G.M. was innocent of sexual offenses but committed nonetheless, Dr. Gilman noted he was deprived of an interview with G.M. because he refused to attend, stating:

Does it mean that I'm absolutely right and that I have all the truth? No. It's always subject to certain limitations. In this case[,] the data that I have is consistent with the diagnosis that I've made. And I have to give weight to those guilty determinations and pleas because that's--that's the information that I have.

Dr. Gilman also stated G.M. was a poor prospect for a conditional discharge as his compliance with discharge conditions was low.

According to the TPRC's June 11, 2012 report, admitted into evidence without objection,

[G.M.] has remained on Treatment Refusal status during this review period and it is unlikely that he will start engaging in treatment. He refuses to discuss any issues relating to his offending behavior. He presents as angry at the system and says that treatment [i]s a waste of time. He also expresse[s] the belief that he is a changed man and, therefore, does not require treatment.

The TRPC "strongly encouraged" G.M. to "begin meaningfully engaging in treatment by transferring into a Process Group and addressing his sex offender specific treatment issues (e.g., sex offenses, offending dynamics, sexual assault cycle, deviant arousal, and relapse prevention)." Further the TPRC suggested until G.M. "decides to engage in treatment, he is encouraged to consistently attend and actively participate in his Treatment Orientation group, as well as discuss his reluctance to participate in treatment and identify ways in which he could make use of, or benefit from, treatment."

Following the close of evidence, Judge Freedman issued an oral decision denying G.M.'s release on June 19, 2012. Finding the State's expert proofs credible, the judge determined that "clear and convincing evidence" demonstrated that G.M. "suffers from a mental abnormality in the form of [p]edophilia . . . [a]nd that he also suffers from . . . a [p]ersonality [d]isorder" and alcohol dependence. He determined these conditions "particularly and in combination, clearly predispose him to engage in acts of sexual violence, as the record shows." Further, the judge found the expert testimony expressed the opinion these conditions could be controlled through treatment, but G.M. has refused treatment. Judge Freedman concluded "his diagnoses affect him in all three areas: emotionally,

cognitively and volitionally, to predispose him. . . . And . . . if released he would, without a doubt, have serious difficulty controlling his sexually violent behavior that he would, in fact, be a high risk in the community" to reoffend. The judge rejected the possibility of conditional discharge because G.M. does not have the tools necessary to comply and presented no discharge plan. Accordingly, by order dated June 19, 2012, G.M.'s involuntary commitment to the STU was continued, and his next review hearing was scheduled for June 4, 2013.1 This appeal follows.

II.

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 [exists 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 reoffend 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) (emphasizing State's interest in protecting the community), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-33. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow[,]" and the trial court's decision should be given the "'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) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (discussing narrow scope of appellate review), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

III.

Following our review, we reject G.M.'s arguments that the judgment is against the weight of the evidence presented and that he does not currently suffer from a mental abnormality predisposing him to sexual violence, as he never engaged in the sexual offenses. The unrefuted evidence includes G.M.'s guilty pleas to the sexual assault of infant girls. His offered explanations for how he was arrested and charged, and why he actually pled guilty, despite his claimed innocence, are incongruous and even absurd. Despite the overwhelming evidence to the contrary, in his mind, the denial of culpability justifies his treatment refusal. On the contrary, the evidence shows he is in need of treatment to address his sexually violent behavior, which must precede consideration of release. We

conclude from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of June 19, 2012.

Affirmed.

1 We have not been advised whether this hearing took place.

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