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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4655-04T24655-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.X.R.

SVP-377-04

_______________________________________________________

 

Submitted: September 20, 2006- Decided November 1, 2006

Before Judges Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-377-04.

Ronald K. Chen, Public Advocate, attorney for appellant (Richard Sparaco, Designated Counsel, of counsel and on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, G.X.R., appeals from an order of commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Petitioner has a long history of sexual offenses against pubescent and pre-pubescent girls that spans two decades. In 2000, while employed by the Federal Emergency Management Agency (FEMA), petitioner was assessing storm damage at a home in Sussex County. He entered the home and encountered R.C., a young girl less than thirteen years of age. The child's mother was not home and petitioner began to hug the young girl and place his hands on her knee and shoulder. When R.C.'s mother returned home, petitioner left, only to return later when the mother went back to work. At this point, he forced R.C. onto his lap, touched her, became sexually aroused, and masturbated in the bathroom of the home. After he left, R.C. reported the incident to her mother, who, in turn, called the police. Their investigation led to petitioner's arrest.

On March 8, 2002, after pleading guilty to violating N.J.S.A. 2C:24-4a, endangering the welfare of a child in the third degree, petitioner was sentenced to five years imprisonment, concurrent to a sentence he was serving for distribution of heroin, and consecutive to a sentence he was serving for sexual assault and endangering the welfare of a child. He was also sentenced to community supervision for life. N.J.S.A. 2C:43-6.4. Petitioner was transferred to the Adult Diagnostic and Treatment Center at Avenel (ADTC) in April 2002 to serve his sentence.

In August 2004, the State filed this petition for involuntary commitment; after finding probable cause, the court committed petitioner to the Special Treatment Unit (STU). After an initial commitment hearing on January 24 and February 2, 2005, the trial judge concluded,

I am clearly convinced that the respondent is a sexually violent predator. He has been convicted on numerous occasions for crimes against seven children. He suffers from abnormal mental conditions and personality disorders, which are really not contradicted. These affect his cognitive, emotional, and volitional capacities so as to predispose him to commit sexually violent acts.

He has grave difficulty controlling his sexual behavior and this difficulty in controlling his sexual behavior renders him highly likely to recidivate. There is nothing in this record to the contrary, and I'll sign a one-year order.

She ordered petitioner's commitment to the STU for one year.

On appeal, petitioner argues that the State failed to prove by clear and convincing evidence the required elements for commitment under the SVPA. He contends that the State failed to introduce any evidence regarding his response to treatment after his commitment to the STU and before his hearing, a period of four months. He further argues that no one from his present treatment team testified at the hearing as required by N.J.S.A. 30:4-27.30b. Alternatively, he argues that he should have been released on conditional discharge with appropriate conditions.

The scope of our review of a trial court's decision in a commitment hearing is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The reviewing judge's determination should be accorded the 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)).

Based upon our review of the record, we conclude there was ample evidence to support the trial judge's conclusion that the State had demonstrated, by clear and convincing evidence, the required elements for commitment under the SVPA, and we affirm substantially for the reasons set forth in Judge Perretti's comprehensive, oral opinion.

In In re Commitment of W.Z., 173 N.J. 109 (2002), the Supreme Court set forth the standard for involuntary civil commitment under the SVPA.

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.

[Id. at 132.]

The trial judge appropriately considered the evidence and applied the standard set forth in W.Z. She noted the lack of progress made by petitioner at the ADTC; the likely results of recidivism, particularly if petitioner failed to continue his medication; and his continued failure to acknowledge his impulses and fantasies.

Further, we reject petitioner's argument that the State failed to comply with N.J.S.A. 30:4-27.30b because no member of his treating team testified at the commitment hearing. Dr. Zeiguer, who testified for the State, is a member of petitioner's treatment team even if he himself did not provide treatment services to petitioner. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 26 (App. Div. 2006).

Lastly, petitioner's argument regarding conditional release is without merit given the trial court's explicit finding that he remains a sexually violent predator. See In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), ("[I]f the person is a sexually violent predator, conditional discharge is not an option. Only if the person is no longer likely a sexually violent predator may the judge consider conditional discharge . . ."), certif. denied, 179 N.J. 373 (2004).

 
Affirmed.

(continued)

(continued)

5

A-4655-04T2

RECORD IMPOUNDED

November 1, 2006