IN THE MATTER CIVIL COMMITMENT OF E.Z.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2176-04T22176-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.Z.F. SVP 376-04

__________________________________

 

Submitted: October 5, 2006 - Decided November 1, 2006

Before Judges Cuff and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 376-04.

Ronald K. Chen, Public Advocate, attorney for appellant E.Z.F. (Stephen M. Latimer, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

E.Z.F. appeals from the December 17, 2004 order that committed him to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

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 "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

On appeal, E.Z.F. argues that the State failed to prove by clear and convincing evidence that he suffers from a paraphilia as listed in the DSM IV-TR predisposing him to commit future acts of sexual violence. He also contends that the trial judge should not have allowed reference to the STATIC 99 because E.Z.F. was a juvenile at the time of the predicate offense. The State responds that it proved by clear and convincing evidence that E.Z.F. suffers from a mental abnormality or personality disorder and that he is highly likely to engage in future acts of sexual violence. The State also urges that it properly utilized the STATIC 99 because E.Z.F. committed the predicate act within three months of his eighteenth birthday.

In his December 14, 2004 oral opinion, Judge Freedman found that E.Z.F. was charged on November 23, 1999, with second degree robbery contrary to N.J.S.A. 2C:15-1 and first degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(3). Following waiver of Family Part jurisdiction, defendant was treated as an adult offender. He eventually pled guilty to both offenses. At the time of his plea, he admitted that he entered a convenience store with the intent to rob it and then stole money from the cash register. E.Z.F. then approached the clerk and forced her to perform oral sex on him twice. The judge also found that E.Z.F. suffers from an antisocial personality disorder that, in combination with his admitted rape fantasies, "is the most robust predictor of future sexual recidivism." The judge also found that this serious antisocial personality disorder "affects him cognitively, volitionally and emotionally. He has shown that he will engage in a very serious sex offense. And I don't think you have to do it twice in order to be committed." Therefore, Judge Freedman found "that [E.Z.F.] would be highly likely -- he would have a serious -- continued serious inability to control his behavior in general, including his sexual behavior, and that within the reasonably foreseeable future . . . the five year period that they talk about, he would commit another sex offense and I have no doubt of it." In conclusion, he found that the antisocial personality disorder predisposes him to engage in acts of sexual violence and "he has a high propensity to be unable to control himself."

Our scope of review of an order for commitment is narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). This is not such a case.

We also reject E.Z.F.'s contention that the trial judge erred in admitting the results of the STATIC 99 and utilizing the results of that actuarial evidence in this case. Actuarial risk assessment instruments are admissible in evidence in civil commitment proceedings pursuant to the SVPA. In re Commitment of R.S., 173 N.J. 134, 137 (2002). Actuarial instruments and expert testimony that refer to these instruments are reliable "where the actuarials are not used as the sole or free-standing determinants for civil commitment." Id. at 136 (citing In re Commitment of R.S., 339 N.J. Super. 507, 538 (App. Div. 2001).

To be sure, we have criticized the use of and barred the admission of the results of actuarial risk assessment instruments when the predicate offense was committed by a juvenile. In re Commitment of J.P., supra, 339 N.J. Super. at 461. However, J.P. was fourteen and fifteen years of age at the time he committed each of the predicate offenses, and the record was barren of any testimony regarding the reliability of such instruments when the offender is a juvenile at the time of the commission of the offenses. Id. at 455-57. That is not the situation in this case. E.Z.F. was within three months of majority when he sexually assaulted the convenience store clerk. This record also contains testimony of recent studies and guidance about the use of actuarial risk assessment instruments with juveniles and further testimony that the reliability of such instruments increases as the juvenile approaches adulthood.

 
Judge Freedman did not err in admitting the STATIC 99 analysis. Moreover, the findings of fact are supported by clear and convincing evidence. We, therefore, affirm substantially for the reasons expressed in Judge Freedman's December 14, 2004 oral opinion.

Affirmed.

(continued)

(continued)

5

A-2176-04T2

RECORD IMPOUNDED

November 1, 2006