IN THE MATTER OF THE CIVIL COMMITMENT OF W.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF W.P.

SVP-208-01.

________________________________________________________________

July 2, 2014

Submitted February 4, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-208-01.

Joseph E. Krakora, Public Defender, attorney for appellant W.P. (Thomas G. Hand, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

W.P. was committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to .38, in October 2001. At his initial commitment hearing, he stipulated that the State had clear and convincing proof he was a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care, and treatment. He was recommitted on an annual basis thereafter through January 2011, stipulating to the sufficiency of the State's proofs on both February 22, 2010, and January 28, 2011. This appeal concerns the February 22, 2010 judgment and the events that followed.

An addendum to the February 2010 order states in pertinent part, "It is further ordered that [W.P.] will go into the [Therapeutic Community (TC)] when a spot is next available . . . ." Approximately one year later, just before the next scheduled review hearing, W.P. was admitted into the TC.

Upon admission to the TC, a new resident begins a thirty-day probationary period and receives, among other introductory information, a copy of the STU Annex Therapeutic Community Resident Guidebook. The Guidebook describes "Cardinal Rules" as rules that "address behaviors, for which there is near zero tolerance in the Therapeutic Community." The Guidebook's discussion of the consequences for violating a Cardinal Rule states that "violations of these rules . . . could result in removal from the Therapeutic Community." One of the Cardinal Rules states, "No sexual acting out, including sexual physical conduct."

It is undisputed that W.P. received the Guidebook, was aware of the Cardinal Rules and that he was on probation.

Within a week of his admission to the TC, W.P. exposed his penis to another resident. According to W.P., his penis was hanging out of his boxer shorts when a second resident walked into the bathroom. He stated this was accidental and a misunderstanding. However, the second resident stated he and W.P. had a history of "flirting" with each other, that W.P. purposely exposed his penis to him, and that W.P.'s penis was hanging over his sweat pants. A third resident who observed the incident stated the whole thing looked "fishy" to him.

W.P. gave his version of the incident at two separate process group meetings on February 7 and 16, 2011. The facilitator's notes of the February 16, 2011 meeting state that W.P. was contradicted by the other resident who walked in, and that the group told him "his version of events makes no sense and that at the very least it demonstrated very poor judgment on his part to have his penis exposed for others to see." W.P. was removed from the TC shortly thereafter.

W.P. filed a motion challenging his removal from the TC. He contended that, because he was placed in the TC pursuant to a court order, the STU lacked the authority to remove him unless and until the State filed a motion to modify the February 22, 2010 order and prevailed. The trial court denied this motion.

W.P. raises the following arguments in this appeal:

POINT I

THE DECISION BY THE TREATMENT TEAM TO REMOVE W.P. FROM THERAPEUTIC COMMUNITY WAS ARBITRARY AND CAPRICIOUS.

POINT II

THE TRIAL COURT ERRED IN NOT HOLDING A FULL EVIDENTIARY HEARING IN WHICH BOTH THE STATE AND COMMITTEE PRESENT LIVE WITNESS TESTIMONY SUBJECT TO CROSS EXAMINATION.

These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

"Decisions regarding the treatment program at the STU are based on judgments exercised by qualified professionals," M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr., 379 N.J. Super. 37, 48 (App. Div. 2005), and the State enjoys wide latitude in exercising its judgment as to appropriate treatment of sex offenders. Kansas v. Hendricks, 521 U.S. 346, 368 n.4, 117 S. Ct. 2072, 2085 n.4, 138 L. Ed. 2d 501, 519 n.4 (1997).

The February 22, 2010 order did not strip the Division of Mental Health and Addiction Services of its discretion to "appropriately tailor[]" treatment "to address the specific needs of sexually violent predators." N.J.S.A. 30:4-27.34(b). Although the order directed that W.P. go into the TC "when a spot is next available," it certainly did not order that he was entitled to remain there indefinitely, despite committing infractions that subjected him to removal.

Affirmed.