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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.N., SVP-193-01.

_________________________________

January 24, 2014

Argued October 2, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-193-01.

Jo Astrid Glading, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

R.N. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of June 8, 2012 that continues his commitment after an annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated in Judge Freedman's comprehensive oral decision of June 5, 2012.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.1

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense i.e., if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment the plan is relevant to the adequacy of the proof that the person is in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

R.N. was initially committed by order of November 30, 2001.

On October 13, 1992, R.N. entered a plea of guilty to aggravated sexual assault upon a twelve-year-old girl. On the same date, he pled guilty in an unrelated case to aggravated sexual assault of an adult woman. In June of 1993, he was sentenced to an aggregate custodial term of fifteen years with a five-year period of parole ineligibility.

R.N.'s first victim, his girlfriend's daughter, was a child under eighteen years of age when R.N. vaginally penetrated her. R.N. claimed that the sexual activity was consensual, and that the girl had tried to attract him by walking around in front of him in a bra and panties. R.N. sexually assaulted his second victim on April 4, 1992, when he pushed her into a building after she saw him on the street and asked him for a light. After pushing her into the building, he sexually assaulted her, at knifepoint, for over an hour.

A review hearing was held on January 13 and April 8, 2003, wherein the court found that R.N. continued to be a sexually violent predator. R.N. appealed the trial court's order of April 8, 2003, which the Appellate Division affirmed on March 2, 2007, A-4929-02T2. R.N. filed a petition for certification, which was denied on May 21, 2007. In re Civil Commitment of R.N., 191 N.J. 318 (2007). Subsequent review hearings were held on May 30, 2008, June 19, 2009, April 19, 2010, November 7, 2011, and May 14 and 22, 2012. After the hearings in May of 2012, the court found that R.N. continued to be a sexually violent predator in need of commitment, and ordered on June 5, 2012 that he remain confined to the STU. It is from that decision that R.N. makes his appeal.

The hearings that preceded entry of the order under appeal were held on May 14 and May 22, 2012. Drs. Howard E. Gilman and Debra L. Roquet testified for the State. Dr. Timothy P. Foley testified on behalf of R.N.

The defense's psychiatric expert claimed that R.N. was not a high risk for re-offense. He also asserted that outpatient substance abuse treatment could be used to effectively treat R.N. Dr. Roquet reported a diagnosis of paraphilia NOS and an antisocial personality disorder. Dr. Gilman diagnosed R.N. with substance dependence on cocaine and alcohol and antisocial personality disorder. He concluded, with reasonable medical certainty, that R.N. continued to meet the criteria for civil commitment under the SVPA. He based this conclusion on R.N.'s history of sexually violent behavior; his history of substance abuse; his history of sexually offending behavior in the context of acute substance abuse; his history of offending against victims known to him, as well as strangers; his history of violent behavior in the context of some of his sexual offending; and his history of antisocial personality disorder.

In his closing argument, defense counsel argued that R.N. has taken advantage of the STU treatment programs and has reached a point where he does not need further inpatient commitment, and instead should be released conditionally. The State, however, pointed to its own expert's recommendations, and noted that R.N. continues to characterize his crimes in such a way as to minimize his wrongdoings.

The judge found the State's witnesses credible, and rejected the claims of defendant's expert on the ground that they had not changed at all throughout the course of treatment. The judge determined that R.N. still poses a danger until he has properly completed his treatment, and that his violent history shows a high likelihood of re-offense if he is released prior to completing further treatment. Thus, the judge ruled that the State met its burden and that R.N. should remain committed as a Sexually Violent Predator for the time being. The judge further held that it was clear that R.N.'s "personality disorder, in conjunction with his substance dependence, do in fact predispose him to engage in acts of sexual violence. His record clearly shows that."

Judge Freedman's determination is supported by and explained with reference to the record and consistent with the law; thus it is entitled to deference from this court. See V.A., supra, 357 N.J. Super. at 63.

Affirmed.

1 In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.