IN THE MATTER CIVIL COMMITMENT OF G.I.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0672-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.I.D., SVP #124-00

____________________________________________

 

Argued February 6, 2006 - Decided February 15, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 124-00.

Joan D. Van Pelt, Assistant Deputy Public Defender argued the cause for appellant (Yvonne Smith Segars, Public Defender).

Lisa Marie Albano, Deputy Attorney General argued the cause for respondent (Zulima V. Farber, Attorney General).

PER CURIAM

G.I.D. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to 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 entered on September 19, 2005, which continues his commitment. We affirm substantially for the reasons stated by Judge Serena Perretti in her oral decision of September 19, 2005.

I

A person who has committed a sexually violent offense may be confined only if suffering 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).

Annual review hearings to determine whether the person remains in need of commitment despite treatment are also required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32. An order of continued commitment under the SVPA, like an initial order, must be based upon "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 Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see also W.Z., supra, 173 N.J. at 132; In re Civil 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 also 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 pursuant to the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense -- that is, 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 such a commitment 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 Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

II

We have carefully reviewed the record on appeal and the arguments of the parties, and conclude that the judge did not mistakenly exercise her discretion and that the order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. We add the following brief comments.

G.I.D. was initially committed by an order entered on October 5, 2000. Other orders continuing his commitment were entered on February 1, 2001, June 24, 2002 and April 14, 2003. The order of April 14, 2003 was affirmed by this court on April 14, 2004. In re Commitment of G.I.D., No. A-5264-02T2.

The hearing that preceded entry of the order under appeal was held on September 19, 2005. At that hearing, Dr. Gregory Gambone and Dr. Arnaldo Apolito testified for the State. No one testified on G.I.D.'s behalf. The evidence adduced at that hearing reveals that G.I.D. is thirty-one years old and that he was committed to the STU following his service of a sentence for a sexual assault on a thirteen-year old girl. G.I.D. had previously served a sentence for a prior sexual assault and had a long history of criminal behavior commencing in his youth. He was diagnosed with paraphilia, antisocial personality disorder, and alcohol and marijuana dependency.

The testimony of the doctors and the documentary materials sufficiently supported the judge's conclusion that the statutory requirements were clearly and convincingly met. This evidence, which went unrebutted, demonstrated that G.I.D. continues to issue denials of his prior sexual offenses, and that he has not provided relevant and honest reporting in discussion groups. In addition, he has not reduced defense mechanisms, nor been able to identify and describe the physical, emotional and cognitive effects of his actions on his victims. As a result, the judge concluded that, since the last review of G.I.D.'s circumstances, "nothing's changed."

Based upon these and her other thorough findings, Judge Perretti concluded:

The evidence presented today at the hearing was clear and convincing, and I am clearly convinced that the respondent continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorder that adversely impact his cognitive, emotional, and volitional capacities so as to predispose him to commit sexually violent acts.

I find that he is highly likely as a result to commit sexually violent acts, particularly because he has serious difficulty controlling his sex offending behavior.

The evidence also fully supports the finding that G.I.D. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators," and, thus, precludes a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

 
We lastly conclude that the contentions raised by G.I.D. at oral argument, regarding his claim that he did not receive a fair hearing, lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.

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.

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6

A-0672-05T2

RECORD IMPOUNDED

February 15, 2006