IN THE MATTER CIVIL v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6498-05T26498-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF B.S.M. SVP-371-04

_________________________________

 

Argued March 14, 2007 - Decided April 4, 2007

Before Judge Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. 371-04.

Patrick Madden, Deputy Public Advocate, argued

the cause for the appellant (Ronald Chen, Public

Advocate, attorney).

Beth Leigh Mitchell, Deputy Attorney General,

argued the cause for respondent (Stuart Rabner,

Attorney General, attorney).

PER CURIAM

B.S.M. 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 July 31, 2006, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of July 31, 2006.

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 without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32c(2).

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 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); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002), rev'd o.g., 183 N.J. 536 (2005); 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 133; 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 under the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense -- i.e., 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 -- the plan is relevant to the adequacy of the proof that the person is in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment 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 Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Governed by this standard, we are satisfied that the record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

By way of background, in 1993, B.S.M. was convicted of criminal sexual conduct and criminal restraint in connection with two attacks involving trickery and impersonation of a medical doctor. While awaiting sentencing on these convictions, B.S.M. lured a 14-year-old girl into his car by telling her that he was a medical doctor, and was subsequently convicted of assault. In March 1998, after being released, B.S.M. committed a series of attacks on prostitutes in which he pretended to be a police officer in order to lure his victims into a van. On February 25, 1999, B.S.M. was convicted of three counts of second-degree kidnapping and one count of third-degree aggravated criminal sexual contact.

B.S.M. was initially committed by orders of May 12, 2004 and July 30, 2004. The latter order was affirmed by this court on April 6, 2006. In re Commitment of B.S.M., No. A-7071-03T2 (App. Div.) (slip op. at 5).

The hearing that preceded entry of the order under appeal was held on July 31, 2006. At the hearing, B.S.M. presented no testimony on his behalf.

The State, on the other hand, offered the testimony of Drs. Luis Zeiguer and Merrill Main. Both doctors diagnosed B.S.M. as suffering from paraphilia and a personality disorder with narcissistic features and opined that these disorders predispose him to sexual violence. Dr. Main, a member of the Treatment Progress Review Committee (TPRC), testified that B.S.M. had only reached the beginning of the third phase of treatment, in which much of the recovery takes place. She pointed out that B.S.M. failed to admit that the offenses involved coercion, instead seeing them as the theft of service from prostitutes. She also explained that B.S.M. remains "grandiose," feeling entitled to special treatment, undermining any progress toward the development of empathy which might keep him from reoffending. Dr. Zeiguer added that B.S.M. lies regularly about his profession and education, even in the face of evidence to the contrary.

Based on this evidence, Judge Perretti concluded:

[B.S.M.'s] personality disorder combines with the paraphilia to raise the risk of repetitive sexually violent offenses, Because of the personality disorder the respondent has no empathy, is reckless, lacks regard for the rights of others and is aggressive.

. . . .

In Dr. Zeiguer's opinion, the respondent is predisposed to commit sexually violent acts as a result of the effect of his diagnosed conditions on respondent's cognitive, emotional and volitional capacities.

Dr. Zeiguer did a Static 99, a score of 7, placing respondent in a category of high risk offenders. This supports the doctor's clinical evaluation of the respondent as presenting a high risk which has not been significantly mitigated by treatment or by the aging process.

. . . .

The respondent has demonstrated little progress in therapy. His participation is minimal. Dr. Main views him as a treatment resistor, although not a treatment refuser.

This respondent has previously demonstrated his lack of control over his sexually violent behavior. He has committed sexually violent offenses after having been previously convicted. He has committed sexually violent offenses while on bail and awaiting trial on another charge. The evidence was uncontradicted.

The respondent continues to be by clear and convincing evidence a sexually violent predator.

He suffers from abnormal mental condition and personality disorder that adversely influences his cognitive emotional and volitional capacities so as to predispose him to commit sexually violent acts.

He has demonstrated . . . very severe difficulty controlling his sex behavior. There is no reason to believe that the situation has changed. It is highly likely that he will recidivate if not continued in custody for further treatment and for the protection of the public.

The record amply supports Judge Perretti's determination to continue B.S.M.'s commitment. The conclusion that B.S.M. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

Affirmed.

 

In addition, 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)

7

A-6498-05T2

RECORD IMPOUNDED

April 4, 2007