On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-295-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R.B. Coleman.
M.H., who is now fifty-nine years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of January 2, 2007, continuing his commitment to the STU following a first review hearing. On appeal, M.H. argues that although he may have been diagnosed with anti-social personality disorder, the State presented insufficient evidence of a present manifestation of that condition, particularly in view of his advanced age, such that he would be likely to re-offend if released.*fn1 Based on our review of the record, we are not persuaded by this argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of December 18, 2006.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "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. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment must be based on clear and convincing evidence that an individual who has been convicted of a sexually violent offense suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. M.H. was initially committed by an order entered on June 18, 2003, which he appealed and we affirmed in an unpublished opinion. In re Civil Commitment of M.X.H., No. A-5780-02T2 (App. Div. March 2, 2006). After our affirmance, an initial review hearing was held on September 6, 2006, September 28, 2006, and December 18, 2006, before Judge Perretti and a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has had a long history of sexually violent offenses and juvenile and adult criminal behavior, which we detailed at length in our earlier opinion. In 1970, he was charged with sodomy of a male victim, which offense was nobilled; in 1971, he was convicted of assault with intent to commit carnal abuse on a thirteen-year-old girl and sentenced to a seven-year custodial term; in 1976, he pled guilty to attempted rape of a sixteen-year-old girl and was sentenced to 364 days in county jail; and in 1978, he pled guilty to carnal abuse as a lesser charge of rape and kidnapping of a fifteen-year-old girl and was sentenced to a seven-year custodial term. In 1986, M.H. pled guilty to aggravated sexual assault of a thirteen-year-old boy by anal intercourse at knife point, which served as the predicate offense under the SVPA, N.J.S.A. 30:4-27.26, and was sentenced to a twenty-year custodial term with a ten year period of parole ineligibility.*fn2
At the review hearing, Dr. Luis Zeiguer, a psychiatrist, and Dr. Brian Friedman, a psychologist and member of the Treatment Progress Review Committee (TPRC) testified for the State, and Dr. Jeffrey Singer, a psychologist, testified on behalf of ...