On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-413-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Parrillo and Sabatino.
M.N. appeals from an order entered on March 22, 2006, civilly committing him under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). The order was entered following an evidentiary hearing on March 21, 2006, at which the court considered expert testimony and other proofs. After reviewing the record in light of the contentions advanced on appeal, we affirm.
M.N. has a history of sexually deviant and other wrongful behavior. When he was thirteen, he sodomized another child with an umbrella. He thereafter committed various offenses as a juvenile and as a young adult, including assault, larceny, aggravated assault, and burglary.
At the age of twenty-three in August 1980, M.N. attacked a woman on the street, dragged her to a vacant lot, and forced her to have vaginal intercourse. When she resisted, he repeatedly struck the victim in the face with a bottle and threatened to kill her. After a jury trial, M.N. was convicted of sexual assault. He served most of his sentence for that crime at the Adult Diagnostic Treatment Center ("ADTC") for sexual offenders, from 1981 to 1985. The record indicates that while M.N. was at the ADTC, he was accused of sexually assaulting another resident, which caused him to be transferred to the East Jersey State Prison for the balance of his term. He was paroled in April 1987.
Subsequently, in April 1992, a jury found M.N. guilty of three counts of second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c(1), and one count of third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2. Those offenses stemmed from M.N.'s encounter with an adult female on the street on May 5, 1990. According to the State's proofs, M.N. accosted the woman, and told her that he had been watching her and wanted to have sex with her. M.N. grabbed her by the neck and dragged her to a river bank. He then had non-consensual intercourse with her until she managed to escape. M.N. was sentenced for these crimes to an aggregate twenty-five years in prison, with a minimum parole ineligibility of twelve and a half years.
Upon M.N.'s anticipated release from prison, the Attorney General filed a petition in October 2005 seeking M.N.'s civil commitment under the SVPA. After being examined by mental health experts, M.N. was temporarily committed to the Special Treatment Unit ("STU"), pending a final hearing on the commitment petition. Following that hearing, the judge, in her order of March 22, 2006, concluded that the State had proven, "by clear and convincing evidence, that [M.N.] is a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment . . . [.]" M.N. does not dispute that his 1992 convictions for sexual assault qualify under the SVPA as predicate "sexually violent offenses." See N.J.S.A. 30:4-27.26. Nonetheless, M.N. argues on appeal that the State failed to adduce sufficient proof at his hearing that he is subject to commitment under the SVPA. In particular, M.N. contends that the State failed to show that he presently has the requisite mental or personality characteristics causing him serious difficulty in controlling his sexual urges, and that he is likely to reoffend. We disagree.
Pursuant to the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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. As the statute makes clear, 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. Such 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). It is not necessary for the State to prove the individual's total lack of control. Id. at 126-27. Rather, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 126.
The statute further requires the State to establish a 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.
The court must address the individual's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. In that vein, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 132. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32. Our appellate review of judgments of civil commitment is exceedingly narrow in scope. We "only reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." T.J.N., supra, 390 N.J. Super. at 226. A reviewing court should give the "utmost deference" to the judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Such a determination will be subject to modification "only where the record reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459. "The appropriate inquiry is to canvass 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).
Here, the State presented at the commitment hearing expert testimony from two mental health professionals who had reviewed M.N.'s past history and present condition: Dr. Michael McAllister, a psychiatrist, and Dr. Brian Friedman, a psychologist. M.N. stipulated, through his counsel, to the qualifications of both Dr. McAllister and Dr. Friedman to testify as expert witnesses. M.N. did not present any competing expert testimony. Nor did he testify on his own behalf. Dr. McAllister reviewed M.N.'s offense history and his treatment records. He also attempted twice to interview M.N., who was uncooperative. Based upon his review, Dr. McAllister diagnosed M.N. with antisocial personality disorder, and also with sexual sadism, or, alternatively, paraphilia NOS (Not Otherwise Specified). He further concluded that M.N. is prone to abuse alcohol, marijuana and cocaine, but was in institutional remission. In support of these diagnoses, Dr. McAllister offered the following specific pertinent findings:
Q: What is your diagnosis of [M.N.]?
A: [M.N.] has a sexual perversion. A DSM is used to describe this, and the word that they use for perversion is a paraphilia. Because of the -- [M.N.'s] admissions of fantasies of rape, the excessive force used in his offenses, the threats involved, I ...