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

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NOT FOR PUBLICATION WITHOUT THE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 S.M., SVP-308-03.

_________________________________

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-308-03.

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

Erick Lucadamo, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

S.M. 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 27, 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 by Judge Freedman's comprehensive oral decision of June 27, 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).

S.M.'s predicate offense is detailed in this court's decision affirming his commitment pursuant to the SVPA. In re Commitment of S.B.M., No. A-2105-09 (App. Div. June 2, 2010) (slip op. at 2-3). In addition to the predicate offense, in March of 1986 S.M. was charged with attempted rape, assault, and criminal possession of a weapon, and sentenced to a prison term not to exceed five years. In December 1988, he was charged with first-degree rape in Buffalo, New York, and pled guilty to third-degree attempted burglary. That conviction stemmed from an incident in which he choked and held a woman at gunpoint, then raped her, after he followed her into her apartment. In January of 1993, S.M. was charged with aggravated sexual assault and weapons offenses after raping another woman at knifepoint. S.M. pled guilty to lesser charges.

S.M. was initially committed to the STU by order of March 20, 2003. Prior orders continuing his commitment were entered on March 29, 2004, August 1, 2005, December 20, 2007, November 5, 2008, December 14, 2009, October 8, 2010, and June 27, 2012. S.M. appealed the August 1, 2005 decision, and it was affirmed by the Appellate Division, A-6426-04. He appealed the December 20, 2007 decision, and his recommitment was reversed and remanded for a new hearing before a different judge by an opinion of September 3, 2008, A-2384-07. His November 5, 2008 recommitment was affirmed by our opinion of June 22, 2009, A-1703-08. He appealed the December 14, 2009 decision, which was affirmed in June 2010, A-2105-09.

The hearing that preceded entry of the order under appeal was held on May 24 and June 1, 2012. Drs. Michael Kunz and Paul Dudek testified for the State. Dr. Barry Zakireh testified on behalf of S.M.

Both of the State's witnesses agreed that S.M. meets the clinical standards for a psychopath. Both also diagnosed him with paraphilia, non-consent and antisocial personality disorder. Both of the State's experts placed S.M. in the 98-99.5% of all offenders in terms of his high risk of recidivism. The experts agreed that because of his disorders and psychopathy, as well as his modest gains in treatment, S.M. remained at a high risk for reoffending and should remain committed to the STU.

In an oral decision on June 27, 2012, Judge Freedman continued S.M.'s commitment. He noted that S.M.,

[H]as a much higher belief in [the] completeness of his treatment than do the treaters. And I think the record clearly supports that the treaters are correct and not [S.M.].

He has improved. . . . I credit the testimony of Dr. Kunz and Dr. Dudek. I think that [S.M.] is psychopathic. . . .

Judge Freedman found, by clear and convincing evidence, that S.M. did have a paraphilia and an antisocial personality disorder. He also found that S.M. was predisposed to engage in acts of violence and sexual violence, and that if released, he would still have difficulty controlling his sexually violent behavior, to the extent that he would be highly likely to engage in acts of sexual violence in the reasonably foreseeable future. Judge Freedman's determination is supported by and explained with reference to that record, and it is 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.