IN THE MATTER OF THE CIVIL COMMITMENT OF B.Z.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1365-02T2

A-4335-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF B.Z.B.,

SVP-259-02

___________________________

 

Submitted March 14, 2007 - Decided

Before Judges Collester and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SVP-259-02.

Ronald K. Chen, Public Advocate, attorney

for appellant (Heather S. Ellis, Assistant

Deputy Public Advocate, of counsel and on

the brief).

Stuart Rabner, Attorney General, attorney for respondent State of New Jersey (Patrick

DeAlmeida, Assistant Attorney General, of

counsel; David L. DaCosta, Deputy Attorney

General, on the brief).

PER CURIAM

Committee B.Z.B. appeals from the April 12, 2005, judgment of Judge Serena Perretti continuing his commitment to the New Jersey Special Treatment Unit (STU) as a sexually violent predator within the meaning of N.J.S.A. 30:4-27.26. We affirm.

Currently fifty-one years old, B.Z.B. pleaded guilty on September 14, 1992 to two counts of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), based on his sexually fondling his wife's nephews. He was placed on probation, and during the probationary term he sexually abused his adopted daughter. On February 26, 1996, he pled guilty to aggravated sexual assault in the first degree and was sentenced to a term of ten years imprisonment to be served at the Adult Diagnostic and Treatment Center (ADTC).

Prior to the conclusion of his custodial sentence, B.Z.B. was evaluated at the ADTC and was rated as a high risk to sexually reoffend. On July 2, 2002, the State filed a petition to commit B.Z.B. as a sexually violent predator, and an order was entered pursuant to N.J.S.A. 30:4-27.2(a) to commit him to the STU until conditions change so that he was no longer likely to engage in acts of sexual violence if released. The Law Division judge found probable cause and issued a temporary commitment to the STU pending final hearing. On September 25, 2002, the hearing judge found the State's evidence established B.Z.B. as a sexually violent predator under N.J.S.A. 30:4-27.24 and remanded him to the STU. B.Z.B. filed an appeal from that judgment, but no brief was ever filed. A review hearing was conducted on April 12, 2005, and Judge Serena Perretti found that B.Z.B. continued to be a sexually violent predator in need of commitment. He was again remanded to the STU pending his next review hearing. This appeal is from the April 12, 2005 order entered by Judge Perretti.

B.Z.B. sets forth the following arguments for our consideration on appeal:

POINT I - NO EVIDENCE WAS PRESENTED BELOW WHICH WOULD ESTABLISH THAT B.B. IS CURRENTLY DANGEROUS OR THAT HE SUFFERS FROM A MENTAL ABNORMALITY WHICH MAKES HIM HIGHLY LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE.

A. DR. KERN'S "CLINICALLY GUIDED OPINION" SHOULD BE DISCOUNTED SINCE IT IGNORED AVAILABLE ACTUARIAL EVIDENCE OF THE TYPE THAT OUR SUPREME COURT HAS HELD IS SUPERIOR TO CLINICAL JUDGMENT ALONE. FOR THE SAME REASON, DR. FOLEY'S OPINION SHOULD BE ASSIGNED ENHANCED WEIGHT AND CREDIBILITY, AS IT RELIED ON "ACTUARIALLY GUIDED CLINICAL JUDGMENT," OF THE TYPE RECOMMENDED BY THE SUPREME COURT IN R.S.

POINT II - THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT B.B. IS A SEXUALLY VIOLENT PREDATOR IN NEED OF CIVIL COMMITMENT.

POINT III - DUE PROCESS REQUIRES THAT THE GROUNDS FOR COMMITMENT AS A SEXUALLY VIOLENT PREDATOR BE PROVEN BEYOND A REASONABLE DOUBT.

There is no dispute that B.Z.B. was convicted of a sexually violent offense of aggravated sexual assault of his daughter and that offense and the endangering offenses were sexual in nature. Therefore, the first statutory requirement for commitment under the SVPA has been satisfied.

The SVPA further requires that to be adjudicated a sexually violent predator, a person must suffer "from a mental abnormality or personality disorder," N.J.S.A. 30:4-27.26. A mental abnormality is defined as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. As interpreted by our Supreme Court, the individual's inability to control his or conduct is determinative, not the nomenclature within the statute. In re the Commitment of W.Z., 173 N.J. 109, 127-28 (2002). See W.Z., supra, 173 N.J. at 132. The State must adduce evidence that the individual has serious difficulty controlling his sexually harmful behavior so that it is "highly likely" that he will not curb his sexually violent behavior and will reoffend. W.Z., supra, 173 N.J. at 132. B.Z.B. argues that Judge Perretti erred in finding that the State's proofs established that he was a sexually violent predator. We disagree.

Dr. Stanley Kern testified for the State that B.Z.B. poses a significant risk to sexually reoffend based on his history of sexually violent behavior in the community, the fact that his progress in treatment was minimal, and the fact that pedophilia does not spontaneously remit. He also diagnosed B.Z.B. with personality disorder NOS and stated that the combination increases the likelihood that B.Z.B. will act on his sexually violent impulses. Dr. Thomas Schattner, a psychologist, also testified for the State and agreed with Dr. Kern's diagnosis. Testifying for B.Z.B., Dr. Timothy Foley agreed with the diagnosis of pedophilia but opined that the additional diagnosis of personality disorder was incorrect. Moreover, he used a clinical adjusted actuarial method to find that B.Z.B. was not highly likely to commit another sexual offense. He found B.Z.B. to be in the medium high category for re-offending with a twenty-six percent chance of recidivism in the first year, with thirty-one percent after ten years, and thirty-six percent after fifteen years.

Our scope of review of a judgment of commitment is very narrow. In re the Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The determination of the initial reviewing court is subject to modification only when the record reveals a clear abuse of discretion. V.A., supra, 357 N.J. Super. at 63. We find no abuse of discretion in this instance. B.Z.B.'s past conduct coupled with the fact that he sexually abused his daughter while on probation from the earlier conviction of a sexual nature was properly given great weight. See W.Z., supra, 173 N.J. at 129; In the Matter of Registrant, C.A., 146 N.J. 71, 105 (1996). We find substantial evidence in the record to support the findings and conclusions of Judge Perretti.

Finally, we note that while B.Z.B. argues that the State's burden of proof should be that of beyond a reasonable doubt, our jurisprudence recognizes the clear and convincing standard as the appropriate measure of proof in a civil commitment proceeding. State v. Bellamy, 178 N.J. 127, 136 (2003); W.Z., supra, 173 N.J. at 120; In re the Commitment of J.H.M., 367 N.J. Super. 599, 607 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

 
Affirmed.

(continued)

(continued)

6

A-1365-02T2

RECORD IMPOUNDED

May 15, 2007