IN THE MATTER OF THE CIVIL COMMITMENT OF G.X.R.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-06T25849-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.X.R.

SVP-377-04.

__________________________________________________________

 

Argued January 14, 2008 - Decided

Before Judges Parrillo and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SVP-377-04.

Peter Latimer, Assistant Deputy Public

Advocate, argued the cause for appellant

(Ronald K. Chen, Public Advocate, attorney;

Patrick Madden, Assistant Deputy Public

Advocate, of counsel).

David DaCosta, Deputy Attorney General,

argued the cause for respondent (Anne

Milgram, Attorney General, attorney; Nancy

Kaplan, Assistant Attorney General, of counsel).

PER CURIAM

G.X.R. appeals from an order of June 25, 2007, that continued his involuntary civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.

The SVPA's definition of "sexually violent predator" includes an individual "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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

Individuals committed under the SVPA must be afforded an annual court review hearing to determine whether involuntary commitment as a sexually violent predator should be continued. N.J.S.A. 30:4-27.35. The purpose of a court review hearing "is to decide if confinement under the SVPA and W.Z. standards is proper." In re Commitment of K.D., 357 N.J. Super. 94, 99 (App. Div. 2003). "[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 the plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130.

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may be modified "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. denied, 177 N.J. 490 (2003).

At the court review hearing on June 25, 2007, to determine whether G.X.R.'s involuntary commitment as a sexually violent predator should be continued, the State presented testimony from Dr. Howard Gilman, a psychiatrist, and Dr. Robert Carlson, a psychologist. G.X.R. did not testify and no witnesses were produced on his behalf. Dr. Gilman testified as follows:

Q. Now does [G.X.R.] suffer from a mental abnormality or personality disorder predisposing him to acts of sexual violence?

A. He does.

Q. What are your psychiatric diagnoses here?

A. My diagnoses are that of pedophilia, as well as exhibitionism, a history of substance abuse, and a personality disorder not otherwise specified with antisocial features.

Q. These diagnoses cause him serious difficulty controlling his sexual violent behavior?

A. They do.

Q. And would you characterize [G.X.R.'s] risk of committing sexual reoffenses in the foreseeable future unless confined in this institution for treatment to be high?

A. Yes.

Q. Highly likely?

A. Highly likely, yes.

The trial court's findings and conclusions included the following:

According to Dr. Carlson's testimony, the respondent is now performing relatively well in treatment. He contrasted his participation here with his poor participation while at ADTC. According to the psychologist, the respondent's treatment here has been focusing on family issues as a result of the direction of his therapists. Thus, he has not been concentrating his attentions upon his sex offending specific issues. The TPRC now recommends that the respondent turn his attention to those issues.

. . . .

It is concluded from Dr. Carlson's testimony that the respondent has been applying himself in the therapeutic program since in or around the midpoint of 2006. Thus, he is a relative newcomer to therapy, and his promotion to Phase 3 is a recognition of rapid progress being made by this respondent.

The court also relied on Dr. Gilman's testimony:

These diagnoses [by Dr. Gilman] are not contradicted. The doctor testified that the respondent is subject to all of the criteria of the statute.

The testimony was clear and convincing, together with the exhibits in evidence. The [c]ourt is clearly convinced that the respondent continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorder that influence his emotional, cognitive, and volitional functions so as to predispose him to commit sexually violent acts.

The respondent has demonstrated his inability to control his sexually violent behavior as has been seen from his repetitive sex offending after serving a lengthy sentence on a sex offense conviction in the State of Florida. While it may be said that exhibitionism is not a particularly serious sexual offense, it must be noted that this respondent in his index offense went considerably beyond mere exhibitionism and placed the 12-year-old victim in an extraordinarily dangerous situation.

It is as a result of the conditions and the lack of control highly likely that the respondent will commit sexually violent offenses in the reasonably foreseeable future if not confined for additional care. Inasmuch as this respondent appears to be making such rapid progress now that he has engaged himself in treatment, an eight-month review date will be fixed.

We conclude from our review of the record that the court's decision to continue G.X.R.'s involuntary commitment as a sexually violent predator is supported by clear and convincing evidence, and it is consistent with controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Perretti on June 25, 2007.

Affirmed.

 

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6

A-5849-06T2

RECORD IMPOUNDED

January 25, 2008