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

RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-2780-18T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
M.A., SVP-626-11.
______________________

                 Submitted March 24, 2020 – Decided April 15, 2020

                 Before Judges Fisher, Gilson and Rose.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Essex County, Docket No. SVP-626-11.

                 Law Offices of Alan L. Zegas, attorneys for appellant
                 (Alan L. Zegas and Joshua M. Nahum, on the brief).

                 Gurbir S. Grewal, Attorney General, attorney for
                 respondent (Melissa H. Raksa, Assistant Attorney
                 General, of counsel; Stephen J. Slocum, Deputy
                 Attorney General, on the brief).

PER CURIAM

       In 2009, M.A. was convicted of sexually assaulting,  N.J.S.A. 2C:14-2(b),

a six-year-old boy at a rest stop on a New Jersey highway, and sentenced to a

three-year prison term subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2.

The court also imposed parole supervision for life. As M.A.'s prison term neared
its end, the State petitioned for his commitment to the Special Treatment Unit

(STU), pursuant to the Sexually Violent Predator Act (SVPA),  N.J.S.A. 30:4-

27.24 to -27.35.     The trial court entered a judgment requiring M.A.'s

commitment and has continued to the present day his commitment as the result

of numerous subsequent review hearings.

        M.A., who is now forty-two years old, claims he was, until his

incarceration, a Maine resident and that he had never resided in New Jersey. In

fact, it appears that his crime occurred during a trip through this State while on

his way from Pennsylvania to New York. M.A. also alleges that, as his term of

incarceration in state prison neared its end, application was made to Maine

officials to obtain their commitment to overseeing M.A.'s parole supervision for

life.

        In light of these circumstances, M.A. argues that the latest order

continuing his commitment under the SVPA, entered on January 16, 2019,

should be reversed. In a single, multi-faceted point, M.A. argues that the trial

judge "failed to properly apply the civil commitment standard by failing to

determine whether it is highly likely that any re-offense would occur in or

impact New Jersey." In short, M.A. argues that it is not enough that the State




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prove that he is highly likely to reoffend; the State must also show that it is

highly likely that he will reoffend "in New Jersey." We disagree and affirm.

      A criminal defendant, who has been convicted of a predicate offense – as

was M.A. – may be involuntarily committed under the SVPA when found to be

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 the need for continued commitment.  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); see also In re Commitment of G.G.N.,  372 N.J. Super.
 42, 46-47 (App. Div. 2004). In that setting, the trial 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.,  173 N.J. at 132-




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34; see also In re Civil Commitment of J.H.M.,  367 N.J. Super. 599, 611 (App.

Div. 2003).

      The State met its burden here. The trial judge heard testimony from a

psychiatrist and a psychologist during the January 15, 2019 hearing. M.A. did

not testify or provide evidence.

      The record reveals that M.A. has acknowledged that his predation on

children began when he was thirteen years old. Before long, he was preying on

children daily; this conduct became a "central, secret, focus of his life." M.A.

has in the past admitted to hundreds of what he referred to as "brush by"

incidents where he would physically brush up against children, as though by

accident, so he could rub his hands against their genitals or buttocks. His victims

ranged from ages four to sixteen, but M.A. admitted his greatest arousal is to

boys ages ten to thirteen. Among his other admissions about more significant

predatory conduct that need not be described here, M.A. has acknowledged

downloading, possessing, viewing and trading "thousands" of pictures and

videos of child pornography.

      Testimony elicited from the State's experts revealed that while M.A.

initially engaged in treatment at the STU, he had, over the last couple of years,

withdrawn from participation. He also continues "to minimize his offenses" and


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has failed to do "some basic things" to prevent relapse. For example, M.A.

continues to claim – as he did in 2009 – that "he can continue to have a fantasy

world that involves sex with children in his own mind and masturbate to those

[images] without acting out on them despite the fact that his whole life was

focused around acting on it." Both experts provided compelling testimony –

evidence the judge found clear and convincing – that M.A. is highly likely to

reoffend.    The judge's findings were "substantially influenced by [the]

opportunity to hear and see the witnesses and to have the 'feel' of the case, which

a reviewing court cannot enjoy." State v. Locurto,  157 N.J. 463, 471 (1999)

(quoting State v. Johnson,  42 N.J. 146, 161-62 (1964)). And, so, our standard

of review is narrow; we defer to the trial judge's findings because they are

supported by evidence in the record. In those circumstances, we "reverse only

for a clear abuse of discretion." In re Civil Commitment of A.E.F.,  377 N.J.

Super. 473, 493 (App. Div. 2005); see also In re Civil Commitment of V.A.,  357 N.J. Super. 55, 63 (App. Div. 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 no reason to second-guess the judge's fact findings. Instead, we

conclude that all the judge's findings are supported by testimony he was entitled


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to credit, that these findings are worthy of our deference, and that the judge did

not abuse his discretion in continuing M.A's commitment under the SVPA.

      Indeed, we do not view M.A.'s arguments as questioning the judge's

findings in this regard. Instead, M.A. argues that the State should have been

required to additionally prove a likelihood of re-offense "specific to the State of

New Jersey." M.A. contends that a state's power to civilly commit offenders

comes from its "parens patriae powers to protect its citizens" (emphasis added),

and, from this, he argues that the power to commit does not turn just on a high

likelihood to reoffend but is "limited to the jurisdiction of the state."

      The SVPA has broader application than suggested by M.A.'s argument.

New Jersey's power to commit is not limited to its citizens or its borders. In

fact, the predicate act that the State must prove need not have occurred in New

Jersey.  N.J.S.A. 30:4-27.26(a) (defining "sexually violent offense" as, among

other things, "a criminal offense with substantially the same elements as any

offense . . . entered or imposed under the laws of the United States, this State or

another state" (emphasis added)); In re Commitment of R.Z.B.,  392 N.J. Super.
 22, 44 (App. Div. 2007) (recognizing that "cognate offenses in another state

readily satisfy the SVPA"). And, the person the State seeks to have committed

need not reside or be domiciled in New Jersey. See  N.J.S.A. 30:4-31 (declaring


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that "[a] nonresident of this State may be committed to a mental hospital in this

State in the same manner as residents may be admitted and committed").

      It is enough that there be some nexus between this State and the offender

or the predicate offense to allow application of the SVPA to a particular

individual. We need not presently fix the lawful jurisdictional reach of the

SVPA here because the predicate act that led to M.A.'s commitment was

committed within our borders, thereby providing for New Jersey a legitimate

interest that would satisfy any constitutional concerns about the SVPA's

jurisdictional reach in this case. While it may be true that M.A. was not a New

Jersey resident when he committed the predicate act, and while it may also be

true that M.A. has no present intention to reside in New Jersey once released,

the power to commit authorized by the SVPA is not limited to New Jersey

residents. That the predicate act occurred here is enough to allow our courts to

fairly and constitutionally commit or continue to commit a nonresident so long

as the SVPA's requirements are met.

      M.A., in fact, recognizes that "residency is not determinative of New

Jersey's rights to pursue commitment under the SVPA," but he argues it should

be a factor when a court considers "whether a reoffense is likely to cause a threat




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to the public safety and health of those in the state" (emphasis added). 1 To be

sure, a committed person's proposed locale and living arrangements if released

may have some bearing on a judge's determination when periodically reviewing

the committed person's circumstances and the need for further commitment. But

we see nothing in the evidence adduced at the hearing that would support the

finding urged by M.A. in this appeal.

      Instead, M.A.'s arguments about territorial concerns were raised in the

trial court by way of a motion denied on November 14, 2018, before the review

hearing took place. As noted, M.A. did not testify nor present evidence at the

hearing, so no record was made at that hearing to support the legal arguments

M.A. presents in this appeal. Moreover, M.A.'s notice of appeal identifies only

the January 16, 2019 order that continued his commitment, not the November

14, 2018 order, which denied his motion to "terminate civil commitment," when

the territorial argument was posed. Even if we were to exercise our discretion

to consider the argument despite M.A.'s decision not to seek review of the

November 14, 2018 order, we observe that the trial judge denied that motion for


1
  In support, M.A. cites to an unpublished opinion of this court, as well as In re
Civil Commitment of Richards,  738 N.W.2d 397 (Minn. App. 2007), which
considered the impact of deportation proceedings commenced against the
committed individual. In neither case did the court view that circumstance as
posing a limitation on the court's power to commit.
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reasons expressed in an oral decision, and M.A. has not included a transcript of

that decision in the record on appeal.      So, while we have rejected M.A.'s

argument about the territorial reach of the SVPA and the contention that the

State prove that M.A. be highly likely to reoffend "in this state" as if there were

support for the factual premise on which M.A. bases these contentions, in fact

the record on appeal is silent in that regard since M.A.'s plans upon release were

not adduced at the hearing.

      To the extent we have not addressed any other argument raised by M.A.

in this appeal, it is because we find any such argument to have insufficient merit

warranting discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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