IN THE MATTER CIVIL COMMITMENT OF R.J.B.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3984-053984-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.J.B., SVP-165-01

_________________________________

 

Argued October 24, 2006 - Decided December 4, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-165-01.

Mary T. Foy, Assistant Deputy

Public Advocate, argued the cause for

appellant (Ronald K. Chen, Public Advocate,

attorney).

David L. DaCosta, Deputy Attorney General,

argued the cause for respondent (Stuart

Rabner, Attorney General, attorney).

PER CURIAM

R.J.B. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under 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 of April 3, 2006, entered after the annual review required by N.J.S.A. 30:4-27.35. That order continues his commitment until March 16, 2007. The parties have agreed that this appeal should be determined on the record and oral argument presented on October 24, 2006.

R.J.B. contends that the record includes incompetent evidence that is inadequate to establish a mental abnormality or personality disorder and does not support his continued commitment. Our review of commitments pursuant to the SVPA is narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). 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 Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). This record shows no such abuse with respect to the order under review. It is adequately supported by the record and consistent with controlling legal principles.

R. 2:11-3(e)(1)(A).

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely unless the person is confined "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting

N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment are 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 on "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 W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); V.A., supra, 357 N.J. Super. at 63; 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 W.Z., supra, 173 N.J. at 132-33; 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. Release subject to conditions is appropriate 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. J.J.F., supra, 365 N.J. Super. at 501-02.

R.J.B.'s "involvement with the justice system as a sexual offender dates from 1994, when he was fourteen years old." In re Commitment of R.B., No. A-3133-03 (App. Div. Apr. 13, 2005) (slip op. at 2). The victim of the sexually violent offense that makes him eligible for commitment pursuant to the SVPA was three years old at the time of the offense. Ibid.

R.J.B. was committed pursuant to the SVPA by order dated April 12, 2002. Id. at 3. An order continuing commitment was entered on September 29, 2003. Ibid. He waived the annual review hearing scheduled for September 14, 2004 pending this court's review of the September 29, 2003 order. Ibid. We affirmed that order on April 13, 2005. Id. at 6. On August 12, 2005, R.J.B.'s commitment was continued for one year on the basis of his stipulation that there was clear and convincing evidence that he remained in need of commitment pursuant to the SVPA.

The hearing that preceded entry of the order of continued commitment that we review was held on March 17, 2006. Dr. Pogos Voskanian and Dr. Doreen Stanzione testified for the State. R.J.B. did not present any testimony.

Dr. Voskanian is a psychiatrist. His opinion was based on his recent evaluation of R.J.B., R.J.B.'s medical records from Trenton Psychiatric Hospital and Ann Klein Forensic Center, evaluations prepared by other psychiatrists and psychologists, and treatment records and progress notes made by staff of the STU. He testified that he had formulated his own opinion and had considered but not simply adopted opinions included in the materials he reviewed, which were the type of materials relied upon by experts in his field. His diagnoses of R.J.B. were antisocial personality disorder, pedophilia with an attraction to both male and female children, exhibitionism, fetishism and a history of substance dependence. In Dr. Voskanian's opinion, these mental abnormalities and personality disorders caused R.J.B. serious difficulty in controlling his sexually violent behavior. In his view, there was a highly likely risk that R.J.B. would reoffend unless confined for care and treatment at the STU because he had not made sufficient progress in his treatment to mitigate the high risk of his engaging in acts of sexual violence that warranted commitment under prior orders.

Dr. Stanzione is a clinical psychologist and a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU. In January 2006, the TPRC met with R.J.B. and, in a report dated March 6, 2006, recommended his continued participation in phase two of the STU's five-phase program.

Dr. Stanzione testified about R.J.B.'s recent progress. Although he had been found in possession of pornographic materials, he had recently begun to discuss his sexual offenses. He also tested positive for methamphetamines and was found in possession of straw, an implement for drug use. R.J.B. contended that the drug test was inaccurate, and a second urine screen was performed. That test was deemed inconclusive because the urine sample was adulterated. Despite his denial, R.J.B. agreed to attend a substance abuse program.

Dr. Stanzione told the judge that R.J.B.'s recent progress in discussing his sexual offending was significant because of its importance to a sex offender's understanding of his or her sexual assault cycle. She also reported that R.J.B. had completed anger management in compliance with the TPRC's prior recommendation, and that he had expressed his willingness to enroll in a "relapse prevention" program designed for sex offenders when he met with the TPRC prior to this hearing.

Judge Perretti reviewed the testimony and reports introduced at the hearing and made findings about mitigation of risk based on the evidence. R.J.B.'s predicate offense was previously established. The judge noted that R.J.B.'s present condition and progress were at issue at this hearing. She recognized R.J.B.'s progress in programs offered at the STU but concluded that recent participation in phase two of the five-phase program was insufficient to make it less than highly likely that he would reoffend if released at that time.

The judge was clearly convinced that R.J.B. continues to "suffer[] from abnormal mental conditions and personality disorders that influence his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts." She concluded that "[a]s a result of his severe difficulties controlling his sex offending behavior it [is] highly likely that he will recidivate if not continued in custody for further care and treatment."

Judge Perretti's determination is adequately supported by the evidence. For that reason, we find no abuse of discretion that would warrant reversal or modification of the order under review. See V.A., supra, 357 N.J. Super. at 63.

 
R.J.B.'s additional arguments about incompetent evidence lack sufficient merit to warrant more than a brief discussion. See R. 2:11-3(e)(1)(E). His claim that the order is based on impermissible reliance on hearsay included in prior expert reports is not supported by the record. Dr. Voskanian explained his limited use of prior expert reports and treatment records. See In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 485 (App. Div.) (undue reliance on prior expert opinion that renders commitment hearings unfair is not present when the experts do "not rely to any significant degree" upon prior opinions but offer "their own opinions based on a detailed examination of . . . criminal history and prior mental health evaluations, as well as their brief interviews" of the person they evaluate), certif. denied, 185 N.J. 393 (2005). While R.J.B. claimed that the drug screen was inaccurate when he received the results, there was no objection to admission of the evidence at the hearing. Further, Judge Perretti expressly stated that she rejected and would not consider evidence about R.J.B.'s possession of straw as evidence of his drug use or possession of drug paraphernalia.

Affirmed.

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.

(continued)

(continued)

8

A-3984-05

RECORD IMPOUNDED

 

December 4, 2006


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