IN THE MATTER OF THE CIVIL COMMITMENT OF N.H.Y.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

THE CIVIL COMMITMENT

OF N.H.Y. SVP-37-00.

________________________________________________________________

October 14, 2016

Submitted September 27, 2016 Decided

Before Judges Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-37-00.

Joseph E. Krakora, Public Defender, attorney for appellant N.H.Y. (Patrick Madden, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

N.H.Y. appeals from a November 21, 2014 order that 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. He argues that "[t]he State failed to show by clear and convincing evidence that [he] was highly likely to commit a sexually violent offense in the foreseeable future." In addition, he contends that "the court fail[ed] to grant [him] relief on [a] motion for independent action," asserting that the SVPA is unconstitutional for a variety of reasons. We find no merit to N.H.Y.'s arguments and affirm.

An individual, once convicted of a predicate offense as defined by the SVPA, may be subject to an involuntary civil commitment if 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, or continuation of the individual's prior commitment, the State must prove "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 J.M.B., 197 N.J. 563, 571, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); 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 Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

N.H.Y. is forty-nine years old and has been committed to the

STU since 2000. The predicate offenses giving rise to his commitment have been discussed in earlier opinions and need not be repeated here. See, e.g., In re Civil Commitment of N.H.Y., No. A-0042-08 (App. Div. Jan. 16, 2009) (slip op. at 4).

N.H.Y. was scheduled for an annual review hearing in November 2014 before Judge Philip M. Freedman. Prior to the hearing, N.H.Y. filed a pro se motion arguing the SVPA was unconstitutional under both the United States and New Jersey Constitutions. N.H.Y. informed the judge that he wished to argue only the constitutionality of the statute, not whether he should be committed pursuant to same. Judge Freedman denied N.H.Y.'s motion, explaining the statute's constitutionality had already been established by both the United States Supreme Court and the New Jersey Supreme Court.

N.H.Y. then consented to the entry into evidence of the State's exhibits and disposition on the papers, asking the judge to "make a ruling on this case on the papers without the doctors for the state needing to testify." Judge Freedman explained that he would "read the two reports as if they were testifying, and then [he would] read the treatment notes, and [then] decide the case." Judge Freedman further explained that because the State provided two expert reports which recommended recommitment and N.H.Y. provided no report, it would be "extremely difficult" to rule in N.H.Y.'s favor.

On November 21, 2014, Judge Freedman entered an order that N.H.Y. was still in need of commitment. That same day, the judge rendered a very thorough oral decision in which he reviewed the history of N.H.Y.'s commitment and the predicate offenses, as well as the evidence adduced at earlier hearings that led to the continuation of commitment, the current expert reports as to N.H.Y.'s mental health and their recommendations for continued commitment, as well as the reports of his progress in institutional programs. After noting the evidence he considered was uncontroverted by N.H.Y. who produced no witnesses or other evidence, and reviewing the statutes and case law governing such matters, the judge stated

Clearly [N.H.Y.] suffers from mental abnormalities and a serious personality disorder, scored in the high range of psychopathy, and that they affect him clearly volitionally and -- and emotionally and cognitively as well. And they, as his record shows, predispose him to engage in acts of sexual violence to such a degree that I find that he would have serious difficulty controlling his sexually violent behavior and would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence. I make all those findings by clear and convincing evidence.

This appeal followed.

The judge's findings and his expertise in these matters are entitled to our deference and, for that reason, we will "not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" In re Civil Commitment of R.F., 217 N.J. 152, 174-75 (2014) (quoting In re D.C., 146 N.J. 31, 58 (1996)).

We do not discern from the record any mistakes being made by Judge Freedman and therefore affirm substantially for the reasons expressed by him in his comprehensive and thoughtful oral decision both as to N.H.Y.'s challenge to the SVPA and to the need for his continued commitment. We find N.H.Y.'s arguments to the contrary to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.