IN THE MATTER OF THE CIVIL COMMITMENT OF D.R.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4070-08T24070-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT

OF D.R., SVP-152-01.

_________________________

 

Argued: September 23, 2009 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-152-01.

Brian P. Hughes, 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 (Anne Milgram, Attorney General, attorney).

PER CURIAM

D.R., who is currently fifty-nine years of age, is a resident of the Special Treatment Unit (STU), a secure custodial facility designed 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 March 23, 2009, continuing his commitment to the STU following a seventh review hearing. On appeal, D.R. argues the State failed to establish by clear and convincing evidence that he required continued commitment, the court erroneously relied upon hearsay testimony and evidence of his mental abnormality too remote in time in ordering the continued commitment, and the court erred in failing to sua sponte adjourn the hearing to allow him to be interviewed that day after he refused to be interviewed by the State's psychiatrist a week before the hearing. Based on our review of the record, we are not persuaded by appellant's arguments 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 John McLaughlin in his oral decision of March 23, 2009.

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 (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 A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); 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 March 23, 2009 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. D.R. was initially committed to the STU by a final order entered on February 7, 2001. Review hearings resulted in orders that have continued commitment. D.R. appealed the August 13, 2002 order following his first review hearing and the March 19, 2008 order following his sixth review hearing; we affirmed both by way of unpublished opinions. See In re Civil Commitment of D.R., No. A-2672-02T2 (App. Div. April 14, 2004); In re Civil Commitment of D.K.R., No. A-3951-07T2 (App. Div. Dec. 4, 2008). Following the last review hearing conducted on March 19, 2009, a judgment of continued commitment was entered, which is the subject of this appeal.

D.R. has a longstanding history of sexual offenses, including a 1978 conviction for rape, contributing to the delinquency of a minor and lewdness. The victim in the offense was D.L., an eighteen-year-old woman who was given a ride by appellant and a juvenile male and sexually assaulted by both men in a secluded area. She indicated she had been threatened with a gun and therefore cooperated with her assailants as she feared for her life. Appellant served approximately two years for this offense and was paroled. Approximately six weeks after he was paroled, appellant began to molest his stepchildren.

On January 20, 1984, D.R. was arrested for nine counts of first-degree aggravated sexual assault and three counts of second-degree sexual assault against his stepdaughter and stepson, both age twelve. The crimes occurred numerous times over a period spanning March of 1981 to January of 1984. He pled guilty to seven counts of first-degree aggravated assault and two counts of second-degree sexual assault and was sentenced to thirty years with a fifteen year parole disqualifier, to be served at the Adult Diagnostic and Treatment Center. His conviction served as the predicate offense for his civil commitment under the SVPA, N.J.S.A. 30:4-27.26.

At the review hearing that is the subject of this appeal, the State presented the testimony of Dr. Roger Harris, a psychiatrist, who explained that he attempted to interview appellant the week before the hearing but appellant refused to participate in the interview. Nevertheless, the expert had sufficient information to reach a conclusion as to appellant's diagnosis, current condition and risk based on the psychiatrist's review of the Treatment Progress Review Committee (TPRC) reports, other treatment records, and reports containing appellant's statements. Appellant presented no expert testimony.

According to Dr. Harris, D.R. was on treatment probation from December 2006 until February 2007. Since that time the clinical staff characterized him as "a frustrated, angry guy that's got his heels dug in . . . ." Dr. Harris was of the opinion that appellant was essentially in a stalemate, which was further reflected in his refusal to be interviewed, his denial of the predicate offense despite his confession and guilty plea, and his refusal to take a polygraph.

Dr. Harris diagnosed D.R. with anti-social personality disorder, pedophilia and alcohol dependence in remission. The expert believed these mental abnormalities continued and caused appellant serious difficulty in controlling his sexual offending behavior and made him highly likely to sexually re-offend in the foreseeable future unless confined to a facility for sexually violent predators.

Following trial, Judge McLaughlin placed a thorough and comprehensive decision on the record. The judge acknowledged that D.R. scored a five on the Static-99 test, which placed him in the category of those who are considered to be a moderate to high risk to sexually re-offend when released from a secure environment. Nevertheless, the psychiatrist opined that based upon D.R.'s anti-social personality disorder and his failure to confront his offense and participate in treatment, that D.R. was highly likely to sexually re-offend in the foreseeable future. The court further noted that although D.R. participated in group, he consistently failed to address significant issues necessary for his treatment, such as continually denying the offenses against his stepchildren, which he admitted in his statements in the pre-sentence report, and refusing to take a polygraph as to the offenses, which was part of the treatment module. These concerns were also expressed by the TPRC, who noted that although D.R. asked for a review hearing, he continued to refuse to address his outstanding issues.

Crediting the testimony of the State's expert and credible evidence presented, Judge McLaughlin ordered that D.R.'s commitment continue and a review hearing be conducted on March 11, 2010, stating:

I find that the state has proven by clear and convincing evidence that [D.R.] has serious difficulty controlling his . . . sexual behavior such that he is highly likely that he will not control his sexually violent behavior since he has not satisfactorily completed his treatment modules, and that he is highly likely to re-offend in the foreseeable future based upon the testimony of Dr. Harris.

In reviewing the record on appeal, we conclude that all the judge's findings are supported by testimony the judge was entitled to credit, these findings are entitled to our deference, and the judge did not abuse his discretion in continuing the commitment of D.R. pursuant to the SVPA. The court acknowledged that D.R. had made some progress at the STU but was not satisfied, based on the treatment records presented, that D.R. had acknowledged his predicate offense and satisfactorily completed his treatment modules, as a result of which he remained in need of continued treatment under the SVPA. The court held the State to the proper standard of "clear and convincing evidence" and set forth in detail its basis for crediting the testimony of the State's expert.

Moreover, the record does not support the claim of D.R. of any evidentiary infirmities by the State's expert or the court's references to hearsay documents or information. See In re Civil Commitment of A.E.F., supra, 377 N.J. Super. at 484-90; In re Commitment of G.G.N., 372 N.J. Super. 42, 55-58 (App. Div. 2004). Nor do we discern any error by the court in failing to sua sponte adjourn the hearing to allow D.R. another opportunity to be interviewed by the State's expert after he refused to cooperate the prior week. See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 27-30 (App. Div. 2006).

 
Affirmed.

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

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9

A-4070-08T2

RECORD IMPOUNDED

October 8, 2009