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In re Civil Commitment of J.C.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 17, 2007

IN THE MATTER OF THE CIVIL COMMITMENT OF J.C.W. - SVP-420-05.

On appeal before Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-420-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Graves and Alvarez.

J.C.W. appeals from a judgment dated May 26, 2006, committing him to the Special Treatment Unit under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "[s]exually violent predator" includes an individual "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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator . . . ."

N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

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. . . . [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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may be modified "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. denied, 177 N.J. 490 (2003).

On appeal, J.C.W. presents the following arguments:

POINT I THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.W. WAS SUBJECT TO SVP COMMITMENT[.]

POINT II

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. TERRANOVA AND ZEIGUER BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below)

POINT III

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL[.]

Based on our review of the record and the applicable law, we conclude the issues raised by J.C.W. are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments. J.C.W. was born on October 13, 1961, so he is now forty- five years old. Following a jury trial in 1991, J.C.W. was sentenced to an eight-year prison term for second-degree sexual assault and endangering the welfare of a ten-year-old girl. On December 8, 1998, J.C.W. pled guilty to third-degree endangering the welfare of a fifteen-year-old girl, and on April 30, 1999, he was sentenced to a five-year prison term. J.C.W. was released from prison on June 21, 2001, and on March 24, 2003, he pled guilty to fourth-degree criminal sexual contact with a fourteen-year-old girl and third-degree endangering the welfare of a child. On October 10, 2003, J.C.W. was sentenced to a four-year term to be served at the Adult Diagnostic and Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-3. Shortly before J.C.W.'s scheduled release from the ADTC, the State filed a petition to civilly commit J.C.W. under the SVPA. At the court hearing to determine whether J.C.W.'s temporary involuntary commitment as a sexually violent predator should be continued, the State presented testimony from Dr. Luis Zeiguer, a psychiatrist, and Dr. Raymond Terranova, a psychologist. J.C.W. did not testify, and he did not present any witnesses or evidence. Dr. Zeiguer's testimony was consistent with his psychiatric assessment dated May 23, 2006, which includes the following conclusions, recommendations, and opinion:

[J.C.W.] suffers from Paraphilia NOS and Severe Personality Disorder that manifested by . . . his crimes and poor responses to punishment and treatment.

He was not deterred by becoming aware that he was being detected or by punishment, he did not learn from experience or from treatments.

He has limited empathy for other human beings, [and he] is self-centered.

He is a treated sex offender whose very high risk has not yet been significantly mitigated by age[,] illnesses[,] or therapy effect.

If intoxicated [he] would become more grandiose and impulsive and engage in more poorly planned offenses, he would tend to care less about getting caught.

Opinion: It is my opinion with a reasonable degree of medical certainty that [J.C.W.] suffers from a mental abnormality that affects his cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence. I do not believe that he meets the standard for conditional release under the SVPA.

Dr. Terranova's testimony was similar to the testimony provided by Dr. Zeiguer. When Dr. Terranova was asked how he would characterize the risk that J.C.W. poses to sexually reoffend, he described the risk as "highly likely."

On May 26, 2006, the trial court rendered an oral decision that included the following:

Dr. Zeiguer further points out that the respondent had been more open when first interviewed and is less open, truthful and reliable now. There is significance in the '95 offense in that it was a crime committed inside a public school. The respondent, as has been seen, has offered numerous different versions of that offense. Although he did enter a plea of guilty, he now claims that he was merely forced by circumstances to say what he told the court under oath.

It is noteworthy, according to the psychiatrist, that that offense was committed while on parole for a prior sex offense. And the respondent went into a risky situation while on parole, not being intimidated or deterred by either supervision or punishment. He also points out that within eight months of the respondent's release on the '95 offense and while on parole, he committed the index offense.

The diagnoses are clearly established by the record. It's the psychiatrist's opinion that the respondent presents a very high risk to re-offend. His re-offenses while on parole, and under supervision, and very quickly after release bear on his inability to control his sex offending behavior and demonstrate the high level of risk.

The evidence in this case is clear and convincing. The diagnoses of the two experts are not contested. Their diagnoses are consistent with each other and amply supported by evidence in the record. This respondent suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive functioning so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sex offending behavior, as has been more than amply demonstrated by his conduct in the past. And he is highly likely as a result to re-offend by committing a sexually violent offense if not confined for further treatment.

Based on our review of the record, we are convinced the trial court's findings are firmly supported by substantial credible evidence, and its legal conclusions predicated on those findings are consistent with controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Perretti in her comprehensive oral decision on May 26, 2006.

Affirmed.

20070917

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