On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-266-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R.B. Coleman.
J.X.P, who is now forty-three years old, 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 October 5, 2006, continuing his commitment to the STU following a fourth review hearing. On appeal, J.X.P. argues there was insufficient basis for the court to credit the State psychiatrist's testimony and opinion that he was unable to control his sexual urges and would present a high-risk to recidivate if released because the expert's opinion was based on unsubstantiated and irrelevant facts.*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 October 5, 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. J.X.P. was initially committed to the STU by an order entered on October 16, 2002. His commitment was continued after yearly reviews, with the prior order entered on February 2, 2004, which J.X.P. appealed and we affirmed in an unpublished opinion. In re Civil Commitment of J.X.P., No. A-3347-03T2 (App. Div. February 14, 2005). A subsequent review hearing was conducted on October 2, 2006, and October 5, 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 against young children. In 1978, he exposed his penis to two girls, age ten and twelve, in the hallway of the apartment building where he lived, for which he was convicted of lewdness and received a probationary sentence of one-year. In 1984, he wrote obscene letters to a ten-year-old girl. J.X.P.'s predicate sexual offenses include repeated acts of sexually deviant molestation of a ten-year-old boy and his eight and nine-year-old neurologically impaired sisters while baby-sitting for them between April 1984 to February 1985, and the abduction, rape and sodomization of a ten-year-old girl on January 23, 1986, accompanied by confessed thoughts of murder to avoid detection. For these predicate offenses, he was sentenced in November 1986 to fifteen years at the Adult Diagnostic Treatment Center (ADTC) for the abduction and rape and two concurrent fifteen-year terms for the assaults upon the two impaired girls that ran consecutive to the sentence for the abduction and rape. Prior to J.X.P.'s "maxing out" on his sentence in August 2002, he was civilly committed to the STU.
At the review hearing, Dr. Brian Friedman, a psychologist and member of the Treatment Progress Review Committee (TPRC), and Dr. Michael R. McAllister, a psychiatrist, testified for the State. J.X.P. presented no witnesses on his behalf. Dr. Friedman testified that the treatment team recommended J.X.P. remain in Phase III of treatment. There was considerable testimony about J.X.P.'s favorable attendance and participation in group sessions, which the court ...