IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4102-11T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

N.M.W., SVP-279-02.

____________________________

August 15, 2012

Argued August 6, 2012 Decided

Before Judges Sapp-Peterson and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-279-02.

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

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

PER CURIAM

N.M.W. appeals from the March 27, 2012 order continuing his commitment to the Special Treatment Unit (STU), with a future review date of March 7, 2013, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons stated by Judge Mulvihill in his oral opinion placed on the record on March 27, 2012.

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 [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 the committee's present serious difficulty with control, and the State must establish, by clear and convincing evidence, that it is highly likely the committee will re-offend. Id. at 132-33. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

A sexually violent predator is defined as:

a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission 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.]

"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" W.Z., supra, 173 N.J. at 120 (quoting N.J.S.A. 30:4-27.26).

"Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)), cert. denied, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder" (citing W.Z., supra, 173 N.J. at 127)).

Our review of a trial judge's order continuing a commitment under the SVPA, is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 N.J. Super. 619 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). 630; see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). This is because we recognize "'committing judges under the SVPA are specialists in the area,'" and their "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), certif. denied, 192 N.J. 296 (2007). Moreover, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Ibid at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, we will not disturb the trial judge's determination unless "the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630.

To that end we "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)). After thoroughly reviewing the record, under this standard of review, we are satisfied the State has met its burden in this case.

N.M.W., who was born on March 8, 1982, was arrested in 1997 on charges that included his rape of two women. This marked his third arrest in a three-year period commencing in 1995 for sex-related offenses. Following his 1997 arrest, jurisdiction of the Family Part was waived and the charges were transferred to adult criminal court. He thereafter pled guilty to one count of second-degree sexual assault, as part of a negotiated plea agreement. He was sentenced to a five-year prison term, with a fifty-one-month period of parole ineligibility.

On October 22, 2002, the State filed a petition for civil commitment under the SVPA. Following a commitment hearing, the trial judge concluded that N.M.W. was a sexually violent predator suffering from a mental abnormality and personality disorder. The judge found the State had established the requisite criteria for civil commitment under the SVPA and, accordingly, ordered N.M.W. committed to the STU. On appeal, we affirmed. In re Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004) (slip op. at 8), certif. denied, 182 N.J. 429 (2004). Since his initial commitment to the STU, N.M.W.'s it has been continued five times, with the most recent continuation occurring on March 27, 2012.

At the March 27 hearing, the State called two witnesses. The first witness, Dr. Alberto Mario Goldwaser, a psychiatrist, was qualified, by stipulation, as an expert in clinical psychiatry. Dr. Goldwaser testified that he attempted to interview N.M.W. on March 21, 2012, but although N.M.W. presented for the interview, he declined to be interviewed, despite being encouraged to do so by one of his treaters, Dr. Amit. Based upon his review of the records, which included the history of the offenses and N.M.W.'s record of treatment, the doctor testified that his opinion, to a reasonable degree of psychiatric certainty, was that N.M.W. suffered, under Axis I,1 from paraphilia, not otherwise specified (NOS), non-consent, exhibitionism, substance abuse, alcohol and marijuana, institutional remission, and, under Axis II,2 antisocial disorder. The doctor further opined that N.M.W. is predisposed to sexual violence and that his mental abnormalities affect him volitionally, cognitively, and emotionally. He specifically noted N.M.W.'s sporadic participation in treatment and the numerous placements in the STU's Modified Activities Placement (MAP) due to institutional infractions, all of which the doctor found not only interrupted N.M.W.'s treatment and progress, but also demonstrated his lack of self-control. It was Dr. Goldwaser's ultimate opinion, within a reasonable degree of psychiatric certainty, that if released from the STU, N.M.W. was highly likely to re-offend.

The State next presented testimony from Dr. Rosemary Stewart, a psychologist, who was a member of the STU Treatment Progress Review Committee (TPRC). The TPRC reviews the resident's records, speaks with treatment providers, interviews the resident, and makes a recommendation as to the resident's phase of treatment or possible release. The TPRC met with N.M.W. on February 14, 2012, and following the meeting, which lasted forty minutes, she prepared a report that included the TPRC's findings and recommendation that N.M.W. be continued in Phase Two, which is the rapport-building phase of the treatment program at the STU. Dr. Stewart explained the recommendation was based upon the fact that although N.M.W. had been in the STU for nine years, his participation in treatment had been inconsistent, indicative of a lack of consistent engagement. The doctor acknowledged that during the TPRC interview with N.M.W., positive developments were noted, including N.M.W.'s admission that he had committed the offense against the victim and he was able to disclose his emotional feelings of boredom, frustration and difficulty listening to the stories of other residents in a group setting. The doctor diagnosed N.M.W. as suffering, under Axis I, from paraphilia NOS, non-consent, exhibitionism, cannabis dependency in a controlled environment, alcohol abuse by history, impulse control disorder, provisional, and under Axis II, antisocial personality disorder and learning disorder NOS, provisional.

No witnesses were presented on behalf of N.M.W. Judge Mulvihill credited the testimony of the State's witnesses and found, by clear and convincing evidence, that N.M.W. was likely to engage in further acts of sexual violence if not continued in a secure and controlled environment. The judge noted that N.M.W. had made some gains, but the judge found these gains had not mitigated the risk that N.M.W. would re-offend. The judge continued his commitment with a future review date scheduled for March 2013. The present appeal followed.

As noted earlier, our review of Judge Mulvihill's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459. See also V.A., supra, 357 N.J. Super. at 63. Having reviewed the record, we find no basis to disturb Judge Mulvihill's factual and legal conclusions, including his explained credibility determinations.

While we acknowledge that N.M.W. has spent half of his life institutionalized, the record reflects that is the result, in large part, of his refusal to consistently engage in therapy. Therefore, he has not progressed to the point where he can be released without presenting a high risk of re-offense. We affirm substantially for the reasons stated in Judge Mulvihill's March 27, 2012 oral opinion.

A

1 "[Axis I - Clinical Disorders] is the top level of the DSM [Diagnostic and Statistical Manual of Mental Disorders] multiaxial system of diagnosis. It represents acute symptoms that need treatment[.] Axis I diagnoses are the most familiar and widely recognized (e.g., major depressive episode, schizophrenic episode, panic attack)." Axis I, PsyWeb.com, http://www.psyweb.com/DSM_IV/jsp/Axis_I.jsp (last visited August 7, 2012).

2 "[Axis II - Personality Disorders and Intellectual Disabilities]" is for assessing personality disorders and intellectual disabilities. These disorders are usually life-long problems that first arise in childhood, distinct from the clinical disorders of Axis I[,] which are often symptomatic of Axis II." Axis II, PsyWeb.com, http://www.psyweb.com/ DSM_IV/jsp/Axis_I.jsp (last visited August 7, 2012).