On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-379-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Seltzer.
Defendant pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a, and was sentenced to a twelve-year custodial term at the Adult Diagnostic and Treatment Center (ADTC). Prior to his release, the State filed a petition for a civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. A hearing was conducted after which Judge Phillip M. Freedman concluded that confinement pursuant to the SVPA was necessary. Defendant appeals from the February 23, 2005, order of commitment. We affirm.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Our review of the record and consideration of the argument of counsel, satisfies us that the State has met its burden in this case.
At the hearing before Judge Freedman, the State produced three experts: Arnoldo Apolito, M.D.; Roger Harris, M.D.; and Natalie Barone, D. Psy. Dr. Apolito diagnosed R.Q.B. as suffering from pedophilia, possible sexual sadism, and antisocial personality disorder. He testified that the pedophilia "predisposes [R.Q.B.] to sexually reoffend" and characterized the risk of reoffending as "high". Given the nature of his condition, Dr. Apolito opined that R.Q.B. is not yet ready for out patient treatment.
Dr. Harris diagnosed R.Q.B. as suffering from pedophilia, paraphilia, sexual sadism, and anti-social personality disorder. He also noted that the Static 99 produced a score of plus 6, placing R.Q.B. in the high risk category for sexual reoffense despite the treatment gains made at the ADTC. This conclusion was premised in part on R.Q.B.'s retraction of previous admissions with respect to his sexual compulsions.
Dr. Barone diagnosed R.Q.B. as suffering from multiple paraphilias. She opined that, "[h]e has a pedophilic type of sexual pathology where he is attracted to children. He also demonstrates paraphilic urges and what I mean by that is sexual attraction to a non-consensual sexual activity. Finally, there are sadistic elements to his sexual arousal pattern . . . ." She also considered him in a "high-risk category" for reoffense and opined that the treatment gains at ADTC were insufficient to suggest commitment was inappropriate.
R.Q.B. testified on his own behalf, but the judge concluded that:
I am satisfied by clear and convincing evidence, based on the testimony of these three experts, all of whose testimony I credit, that [R.Q.B.] suffers from a mental abnormality and a personality disorder that clearly[,] by his record and his statements[,] predisposes him to engage in acts of sexual violence, that he is -- if he were released would have serious difficulty controlling his sexually violent behavior and that he would, within the reasonably foreseeable future, be highly likely to engage in sexually-violent conduct in the reasonably foreseeable future.
The judge, therefore, concluded that commitment was necessary.
The record is sufficient to support Judge Freedman's determination to commit R.Q.B. R. 2:11-3(e)(1)(A). Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 ...