IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5682-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF N.M.,

SVP-511-09.

___________________________________

July 17, 2014

Submitted June 17, 2014 Decided

Before Judges Ashrafi and Haas.

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

SVP-511-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Patrick Madden, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

N.M. appeals from an order of June 2, 2010, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, directing his civil commitment to the "State of New Jersey Special Treatment Unit [(STU)], the secure facility designated for the custody, care and treatment of sexually violent predators." We affirm.

Appellant is approximately fifty years old.1 He has been convicted three times as an adult and adjudicated delinquent once as a juvenile of committing sexual offenses by force. In addition, he has a significant record of other offenses and juvenile adjudications.

In 1979, appellant engaged in sex with a minor against her will. The record of that juvenile offense no longer exists, but appellant pleaded guilty to attempted rape and was sentenced to confinement at the State Home for Boys at Jamesburg. He was paroled in March 1981 and completed his parole in October 1982. Within three months, he used a handgun to rob a man on the street, and later pleaded guilty to first-degree robbery.

On February 3, 1983, which was about five weeks after he was arrested for the robbery and released on bail, appellant forced a young woman into the basement of an apartment house and attempted forcible sex upon her. The woman resisted and screamed while appellant touched her breasts, buttocks, and thighs. Eventually, she fought off appellant and fled. He pleaded guilty to third-degree sexual assault and criminal restraint. In February 1984, he was sentenced to a four-year term of imprisonment to run concurrently with his fifteen-year sentence on the armed robbery charge.

On September 8, 2000, appellant engaged in forced sexual conduct with a woman in Philadelphia. The woman accompanied him to an apartment. Appellant put a pornographic video on the television, removed his clothing, and removed most of the woman's clothing. He groped her and began engaging in intercourse, which she resisted. He then held her down and raped her. The woman immediately sought medical attention after the incident. He pleaded guilty to sexual assault in 2002, and the Pennsylvania court sentenced him to a five-year term of sex offender probation.

On September 18, 2007, appellant again engaged in non-consensual sex with a woman, this time in Atlantic City. The woman was a stranger who had a flat tire. Appellant approached to help and then sat in the woman's car with her and began a conversation about modeling work. He said to her "let's see what you got" as he pulled her shirt and looked at her breasts. He also pulled her waistband and looked into her pants. When she told him to stop, he initially complied.

The two went for a walk on the boardwalk. At some point, appellant took the woman's hand and put it on his penis and repeatedly asked her to engage in oral sex with him. She eventually capitulated to that demand when they returned to the car. But she cried when he attempted to have intercourse with her and begged him to stop. He stopped, but he told her not to inform anyone about what had happened because he was "very dangerous."

She informed her family immediately after the incident and the police the next day. Appellant was arrested. He pleaded guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and was sentenced on March 14, 2008, to eighteen months in prison.

As appellant was approaching the time of his release from imprisonment, the State filed a petition for his civil commitment pursuant to the SVPA. Under the SVPA, "[t]he Attorney General may initiate a court proceeding for involuntary commitment." N.J.S.A. 30:4-27.28(c). "If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a).

"Sexually violent predator" means a person who has been convicted . . . of a sexually violent offense . . . and suffers 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.]

"'Mental abnormality' means 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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.

"To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[T]he State must prove that threat by demonstrating 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." Ibid.

A person committed under the SVPA is afforded an annual hearing for judicial review of his commitment status. N.J.S.A. 30:4-27.35. The "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding." In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (quoting State v. Fields, 77 N.J. 282, 295 (1978)). The judge who conducts the hearing must assess the offender's "present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence a high likelihood that the petitioner will offend again. W.Z., supra, 173 N.J. at 131-33.

In this case, Judge Philip Freedman, an experienced SVPA judge, heard testimony from a psychiatrist, Dr. Roger Harris, on October 22, 2009. In the course of the hearing, however, the judge noticed that appellant had not been advised at the time of his 2008 guilty plea of the possibility of civil commitment resulting from his conviction for a violent sex offense, as required by State v. Bellamy, 178 N.J. 127 (2003). The commitment hearing was interrupted to allow appellant to file a petition for post-conviction relief to vacate the 2008 conviction. The 2008 conviction was vacated, and the civil commitment petition was dismissed without prejudice. However, in April 2010, appellant pleaded guilty again to the same charge and was sentenced again to the eighteen-month term, which he had already served. On May 7, 2010, the State re-filed its petition for civil commitment pursuant to the SVPA.

Judge Freedman heard testimony a second time from Dr. Harris. Appellant's attorney cross-examined Dr. Harris, but appellant presented no witnesses of his own. The judge placed an oral decision on the record on June 2, 2010. He reviewed the evidence in detail, and concluded the State had proven by clear and convincing evidence that appellant suffered from an antisocial personality disorder that predisposed him to acts of sexual violence. The judge also concluded that if released from confinement, appellant would be highly likely to reoffend. Therefore, Judge Freedman ordered appellant's civil commitment and continuing sex offender treatment, and he scheduled a review hearing for May 26, 2011. We have not been informed of the results of the review hearing.

On appeal from the June 2, 2010 commitment order, appellant argues that the testimony of Dr. Harris was insufficient to prove by the clear and convincing standard that he was highly likely to commit sexual crimes as a result of a mental abnormality or personality disorder, and he also argues that the conduct that resulted in his prior convictions did not show that he was a dangerous person because his victims did not suffer serious harm. We find no merit in these arguments.

Dr. Harris interviewed appellant in March 2009, but appellant terminated the interview before it was completed. Dr. Harris attempted to interview appellant again in October 2009, but appellant would not participate in the interview. In addition to the information Dr. Harris received directly from appellant at the first interview, the doctor reviewed the case files to gain insight into appellant's sexual offenses and mental condition.

Dr. Harris diagnosed appellant with severe antisocial personality disorder2 with poor volitional control and with alcohol dependence in remission while appellant was confined. He did not view appellant's history as indicating a compulsion to use force in sexual offenses, or arousal from coercion of the victim, but he described appellant as willing to use force to get what he desired sexually.

Dr. Harris noted that appellant's violent sexual offending had begun when he was a juvenile and continued throughout the years of his adulthood with little change in his understanding of the harm he was causing the victims and no inclination to change his behavior. Instead, appellant would excuse his criminal conduct by alleging that the women had fabricated their version of the events, although these excuses were inconsistent with his pleading guilty to committing sexual crimes. Furthermore, the fact that he committed these crimes while released on bail or while on supervision for prior crimes indicated that he had no ability to control his criminal behavior and would pursue sexual gratification despite the obvious risk of being apprehended, convicted, and sentenced to prison again.

The doctor noted that appellant had a score of seven on the Static-99 test,3 which places him at a high risk for being charged or convicted of another sexual offense. Furthermore, his behavior while undergoing treatment at STU was characterized by his hostility and threatening conduct, thus indicating that the sex offender treatment held no promise of deterrence if appellant were to be released.

Dr. Harris testified that appellant's twenty-eight year history of sex offenses indicated "a disregard for societal rules" and that appellant "is unable to control his sex drive." According to Dr. Harris's testimony, appellant presents a "significant risk" to reoffend if released from confinement.

Contrary to appellant's argument, this psychiatric testimony, supported by the facts upon which it was based, provided clear and convincing evidence that appellant is a violent sexual predator. It proved the essential elements of N.J.S.A. 30:4-27.26, namely, that appellant "suffers from a mental abnormality or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment."

We also find no merit in appellant's argument that his sexual crimes were not sufficiently violent to label him a danger to others if released from confinement. Criminal sexual contact, such as the unwelcome and forcible touching of breasts and other parts of the body in this case, and the attempt to engage in sexual intercourse without consent, can satisfy the statutory requirement of N.J.S.A. 30:4-27.26 that the risk of "sexual violence is of such a degree as to pose a threat to the health and safety of others." See In re Commitment of W.Z., 339 N.J. Super. 549, 556-57, 579-81 (App. Div. 2001), aff d as modified, 173 N.J. 109 (2002).

In In re Civil Commitment of R.F., 217 N.J. 152, 174-75 (2014), the Supreme Court restated the "extremely narrow" scope of appellate review of a commitment judgment. Quoting from In re D.C., 146 N.J. 31, 58 (1996), and citing Fields, supra, 77 N.J. at 311, the Court stated:

The judges who hear SVPA cases generally are "specialists" and "their expertise in the subject" is entitled to "special deference." The final decision whether a person previously convicted of a sexually violent offense is highly likely to sexually reoffend "lies with the courts, not the expertise of psychiatrists and psychologists. Courts must balance society's interest in protection from harmful conduct against the individual's interest in personal liberty and autonomy."

[R.F., supra, 217 N.J. at 174 (citations omitted).]

This narrow standard of review requires that we defer to Judge Freedman's opportunity to evaluate the evidence firsthand and to his expertise in making determinations pertinent to appellant's commitment. The judge's credibility findings were explained in his oral decision. They were based on appellant's offense conduct and treatment history, as well as the detailed testimony of Dr. Harris and his prediction of the risk of future re-offense.

"[A]n appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting D.C., supra, 146 N.J. at 58). We see no clear mistake in Judge Freedman's findings and conclusions.

Affirmed.

1 Appellant's birth year is variously given in three different presentence investigation reports as 1964, 1963, and 1960.

2 Antisocial personality disorder is defined as "a personality disorder that is characterized by antisocial behavior exhibiting pervasive disregard for and violation of the rights, feelings, and safety of others starting in childhood or the early teenage years and continuing into adulthood, that is often marked by a lack of remorse for having hurt, mistreated, or stolen from others, and that in practice is often difficult to diagnose because it is confounded with disorders in which drug addiction or substance abuse is a factor called also psychopathic personality disorder." Merriam-Webster's Online Medical Dictionary, http://www.merriam-webster.com/medical/antisocial personality disorder (last visited July 6, 2014).

3 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014).