IN THE MATTER OF THE CIVIL COMMITMENT OF E.J.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4257-08T24257-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.J.S., SVP-190-01

______________________________________________

 

Argued September 23, 2009 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-190-01.

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

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

E.J.S. appeals from an order entered on April 13, 2009, which continued his commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. We affirm.

A criminal defendant convicted of a predicate offense to the SVPA may be subject to involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).

To warrant commitment, or the continuation of commitment, the State must prove 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). In that setting, the court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The State met its burden here.

The record reveals that E.J.S. has committed numerous offenses, some of which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. He is now sixty-five years of age.

The State first petitioned for and obtained E.J.S.'s civil commitment on August 1, 2001. Review hearings resulted in orders that have continued commitment. E.J.S. has appealed two of these orders; we affirmed both by way of unpublished opinions. See In re Commitment of E.J.S., No. A-2147-02T2 (App. Div. October 21, 2004); In re Commitment of E.J.S., No. A-0696-06T2 (App. Div. April 9, 2007).

Another review hearing was conducted on April 13, 2009, which resulted in the order continuing commitment now before us. E.J.S. argues that the judge's findings were against the weight of the evidence or insufficient to meet the clear and convincing standard and, also, that continued confinement violates the ex post facto provisions of the federal and state constitutions. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm with only the following brief comments.

At the hearing, the State presented the testimony of Dr. Howard Gilman. He testified that E.J.S. refused to participate in a psychiatric evaluation. As Dr. Gilman testified, E.J.S. "found all this to be bullshit, and he walked away." Dr. Gilman also testified that E.J.S. has not been doing well with treatment at the STU; that he is, in essence, "a treatment refuser."

E.J.S. called no witnesses and did not testify on his own behalf. After hearing the argument of counsel, the judge rendered a thorough oral decision. In his decision, the judge found the State's witness to be credible. He found, as a result, by clear and convincing evidence, that the State proved E.J.S. "is a sexual and violent predator as evidenced by his convictions for sexual offenses"; that he has "an abnormality personality disorder, i.e., pedophilia," as diagnosed by Dr. Gilman, which causes him "serious difficulty in controlling his sexually violent behavior"; that E.J.S. "has taken no steps to mitigate" these conditions; and, based on Dr. Gilman's testimony, that E.J.S. will not be able to "control his sexually violent behavior in the future and will be highly likely to offend in the reasonably foreseeable future."

Our standard of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also 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 J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no abuse of discretion and 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 E.J.S. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge John A. McLauglin in his oral decision of April 13, 2009.

E.J.S.'s constitutional arguments are also without merit. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997); State v. Bellamy, 178 N.J. 127, 138 (2003).

Affirmed.

(continued)

(continued)

5

A-4257-08T2

RECORD IMPOUNDED

October 6, 2009