IN THE MATTER CIVIL COMMITMENT OF M.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2375-06T22375-06T2

IN THE MATTER OF THE

CIVIL COMMITMENT

OF M.H., SVP-295-02.

_____________________________

 

Argued: May 15, 2007 - Decided May 29, 2007

Before Judges Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-295-02.

Joan D. Van Pelt, Assistant Deputy Public Advocate, argued the cause for appellant M.H. (Ronald K. Chen, Public Advocate, attorney).

Amy L. Duff, Deputy Attorney General, argued the cause for respondent State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

M.H., who is now fifty-nine years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil 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 of January 2, 2007, continuing his commitment to the STU following a first review hearing. On appeal, M.H. argues that although he may have been diagnosed with anti-social personality disorder, the State presented insufficient evidence of a present manifestation of that condition, particularly in view of his advanced age, such that he would be likely to re-offend if released. Based on our review of the record, we are not persuaded by this argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of December 18, 2006.

I.

A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "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." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment 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 re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).

The scope of appellate review of a trial court's decision in a commitment proceeding 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); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

II.

The order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. M.H. was initially committed by an order entered on June 18, 2003, which he appealed and we affirmed in an unpublished opinion. In re Civil Commitment of M.X.H., No. A-5780-02T2 (App. Div. March 2, 2006). After our affirmance, an initial review hearing was held on September 6, 2006, September 28, 2006, and December 18, 2006, before Judge Perretti and a judgment of continued commitment was entered, which is the subject of this appeal.

Appellant has had a long history of sexually violent offenses and juvenile and adult criminal behavior, which we detailed at length in our earlier opinion. In 1970, he was charged with sodomy of a male victim, which offense was no-billed; in 1971, he was convicted of assault with intent to commit carnal abuse on a thirteen-year-old girl and sentenced to a seven-year custodial term; in 1976, he pled guilty to attempted rape of a sixteen-year-old girl and was sentenced to 364 days in county jail; and in 1978, he pled guilty to carnal abuse as a lesser charge of rape and kidnapping of a fifteen-year-old girl and was sentenced to a seven-year custodial term. In 1986, M.H. pled guilty to aggravated sexual assault of a thirteen-year-old boy by anal intercourse at knife point, which served as the predicate offense under the SVPA, N.J.S.A. 30:4-27.26, and was sentenced to a twenty-year custodial term with a ten year period of parole ineligibility.

At the review hearing, Dr. Luis Zeiguer, a psychiatrist, and Dr. Brian Friedman, a psychologist and member of the Treatment Progress Review Committee (TPRC) testified for the State, and Dr. Jeffrey Singer, a psychologist, testified on behalf of M.H. The court summarized the diagnoses of the experts as follows:

Dr. Zeiguer, the psychiatrist, testified he diagnoses paraphilia N.O.S., learning disabilities, history of alcohol dependence and personality disorder anti-social.

. . . .

Dr. Friedman's diagnosis is to the same effect; alcohol dependence, marijuana abuse, paraphilia N.O.S. and anti-social personality disorder with schizoid features.

As has been noted, Dr. Singer does not diagnose any paraphilia. . . .

However, he concedes, "although [M.H.'s] failure to inhibit his sexually offending behaviors may be a sign of some form of psychopathology, it is not a distinct paraphilia."

The court found the State's experts' diagnoses to be more credible and supported by the record. The court noted M.H.'s high scores in the actuarial tests taken in September 2006, which placed him in the highest or elevated risk of sexual re-offense category. Judge Perretti was unconvinced by Dr. Singer's view, which she found to be inadequately explained, that the assessment factors were counter-balanced by M.H.'s increased age, which would reduce his risk of recidivism for sexual offenses to a "low moderate" range. After a review of all the evidence, the court found more credible Dr. Zeiguer's testimony that although age may generally decrease anti-social manifestations, M.H. was still a risk to the public under the SVPA, although less of a risk than he was ten or fifteen years ago.

The court acknowledged the progress that M.H. made during his two years at the STU, but noted that it was not until the past year that he began to accept substantial responsibility for his predicate sexual offense, which is a key component towards relapse prevention. For that reason, the TPRC did not view M.H. as progressing beyond the core stage of treatment.

Judge Perretti summarized her findings in the following way:

As Dr. Zeiguer observes in his report, it is clear that [M.H.] is not deterred by punishment, does not learn from experience, has little or no empathy for others and his high risk to reoffend has not been significantly mitigated by treatment or by increased age.

The court is clearly convinced from the clear and convincing evidence offered by the State that the respondent continues to be . . . a sexually violent predator suffering from abnormal mental conditions and personality disorder that influence his emotional, cognitive and volitional functioning so as to predispose him to commit sexually violent acts.

He has serious difficulty controlling his sexually violent behavior as he has demonstrated by his history of four violent sex offenses after prior convictions. As a result, it is highly likely that he will recidivate if not continued for further care.

The Court notes the progress that has been made by [M.H.] during the past year. It is only during the past year that he has been . . . participating in any meaningful sense in the therapy offered.

The evidence supports the finding that M.H. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" and that the evidence does not, as Judge Perretti determined, permit 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 M.H. continues to suffer from a mental abnormality or personality disorder that presently causes his serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. In re Commitment of W.Z., supra, 173 N.J. at 132.

 
Affirmed.

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the argument raised by appellant based upon the presentation at oral argument.

M.H. completed his sentence in January 1998, six months before enactment of the SVPA. He had subsequent municipal court convictions and was committed under the SVPA after serving an eighteen-month term pursuant to a guilty plea entered in February 2002 for a conviction for fourth-degree theft by unlawful taking.

(continued)

(continued)

9

A-2375-06T2

RECORD IMPOUNDED

 

May 29, 2007