IN THE MATTER OF THE CIVIL COMMITMENT OF M.F.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4684-08T24684-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.F.C., SVP-303-03

________________________________________

 

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-303-03.

Brian P. Hughes, Assistant Deputy Public Defender, 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

M.F.C. appeals from an order entered on May 19, 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 M.F.C. committed four aggravated sexual assaults between 1981 and 1986 on women between fifty and eighty-three years of age. These convictions qualified as "sexually violent offenses." N.J.S.A. 30:4-27.26.

The State first petitioned for and obtained M.F.C.'s civil commitment in 2003. Review hearings resulted in orders continuing commitment. We affirmed an order continuing commitment entered on July 2, 2004, In re Commitment of M.F.C., No. A-6312-03T2 (App. Div. May 25, 2005), and an order continuing commitment entered on January 10, 2007, In re Commitment of M.F.C., No. A-2611-06T2 (App. Div. May 8, 2007). Another review hearing was conducted on May 8, 2009, which resulted in the order continuing commitment now before us.

In seeking reversal of the latest commitment order, M.F.C. first argues that he was deprived of the Sixth Amendment right to confront the individuals who provided information to the State's experts, citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We find no merit in that contention and continue to adhere to our holding in G.G.N., supra, 372 N.J. Super. at 57, that Crawford's holding should not be extended to SVPA civil commitment proceedings. We also reject M.F.C.'s contention that the State's failure to call the twenty-eight declarants or sources upon whom Dr. Pogos Voskanian relied in formulating his opinion represented a violation of due process principles. Some of those sources were years old, dating back to the original commitment; considering that there have been prior hearings in this case since that time, M.F.C. has not demonstrated that he did not previously have the opportunity to cross-examine any of those declarants. Nor has M.F.C. demonstrated whether any restriction on the data utilized by Dr. Voskanian would have lessened the impact of his opinion at the hearing in question.

We also discern from M.F.C.'s arguments that he contends the judge's findings were against the weight of the evidence or failed to meet the clear and convincing standard. We find insufficient merit in any of M.F.C.'s arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

At the hearing, the State presented the testimony of Dr. Nicole Paolillo, as well as Dr. Voskanian. M.F.C. called no witnesses and did not testify on his own behalf. The judge rendered a thorough oral decision on May 19, 2009. In his decision, the judge found the State's witnesses to be credible. He found, as a result, by clear and convincing evidence, that M.F.C. suffers from "mental abnormalities" and "a personality disorder that predisposes him to engage in acts of sexual violence, as his record very, very clearly shows." Indeed, the judge correctly recognized that, in fact, there was no dispute about M.F.C.'s predisposition to commit sexually violent acts.

Based upon his extensive discussion of the testimony and the other evidence, the judge further concluded that

the only real issue here is whether [M.F.C.'s] treatment has progressed sufficiently to justify a conditional discharge, or an advancement to Phase 4, where he would start getting discharge planning, and furloughs, and I think the testimony of the two witnesses, which I credit, and my review of the record supports . . . a finding well beyond clear and convincing evidence that [M.F.C.] has not progressed in treatment as far as he thinks he has.

. . . .

[I]t's the lack of judgment, and his inability to control himself that is the real issue here, and I find that he would have a serious difficulty controlling himself. At this stage, if he were released, there would be a substantial chance of him going back to substance abuse. He has not taken substantial amounts of treatment in that regard. He's refused to do so. He refuses to go to the therapeutic community, where the depth of his knowledge would be called into question on a daily basis, 24 hours a day and, more importantly, the depth of his application of that knowledge to himself. He doesn't want to expose himself to that. So that I think he has not progressed far enough in treatment to justify considering him for a conditional discharge, or for advancement to Phase 4.

I'm satisfied . . . that he would be highly likely, if released at this point, to reoffend within the reasonably foreseeable future. I'm satisfied by clear and con-vincing evidence. [M.F.C.] is a difficult case in the sense that he has participated. But he needs to know that he has to continue to participate until he gets to the point where there's a confidence in releasing him on conditions.

The nature of what he tends to do is so horrendous and horrific, as shown by his record, and . . . his chance of doing it is so high, even in his present state of treatment[,] that together I think he still constitutes a substantial danger, and is a dangerous person in need of civil commitment.

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 M.F.C. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge Philip M. Freedman in his oral decision of May 19, 2009.

Affirmed.

Indeed, a number of those twenty-eight reports and evaluations were prepared by Dr. Stanley Kern and Dr. Michael McAllister, both of whom testified at earlier review hearings.

(continued)

(continued)

7

A-4684-08T2

RECORD IMPOUNDED

October 6, 2009