October 9, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF H.M. SVP-292-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-292-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 26, 2007
Before Judges Cuff and Simonelli.
H.M. appeals from the May 11, 2006 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument, H.M. argued that the record does not support the finding that he currently suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined due to his age and physical condition. We disagree and affirm.
As related in our companion opinion*fn1 that addresses H.M.'s initial commitment as a sexual predator, H.M. was temporarily committed to the STU on December 13, 2002. After several adjournments, Judge Perretti conducted the initial commitment hearing, and on October 15, 2003, she entered an order committing H.M. to the STU. After a hearing held on May 25, 2005, H.M.'s involuntary civil commitment was continued. H.M. refused to attend the hearing or to see his attorney or to be interviewed by a mental health professional. A second review hearing was conducted on May 5, 2006. Once again, H.M. refused to appear but agreed that the matter should be submitted on the papers.
On May 11, 2006, Judge Freedman issued an order that continued H.M.'s involuntary civil commitment to the STU. In his oral opinion, Judge Freedman found that the State had submitted clear and convincing evidence that H.M. suffers from a mental abnormality and a personality disorder that predisposes him to engage in acts of sexual violence and that H.M. has serious difficulty controlling his sexual urges despite his age and health condition. Specifically, the judge found that H.M. had committed two serious rapes, that he suffered from a mental abnormality and personality disorder that "individually and in combination clearly by his record and his conduct over the years predisposes him to engage in acts of sexual violence," and "without question he has serious difficulty to this day controlling his sexual impulses and . . . his sexually violent behavior."
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 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 that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Our review of these findings 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). We may modify an order "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
The record fully supports the findings of fact made by Judge Freedman. H.M. has committed the requisite predicate offenses. N.J.S.A. 30:4-27.26. He bears the following diagnoses: Axis I: paraphilia NOS, sexual sadism, voyeurism, schizophrenia, alcohol dependence; Axis II: antisocial personality disorder; Axis III: prostate cancer in remission, chronic obstructive pulmonary disease, gastrointestinal adhesions (secondary to a gunshot wound), hypercholesterolemia, and vulvulus. Despite his significant medical history and age, seventy at the time of the review hearing, H.M.'s Static 99 score was 6. A score of 6 on this measure indicates an elevated risk of reoffense by sexual offenders. Moreover, H.M. admitted to confronting a mentally disabled STU resident and acting out sexually against him as late as September 2005. This behavior demonstrates that H.M. continues to identify and prey upon vulnerable individuals and fully supports Judge Freedman's finding that H.M. poses a present risk that he is likely to engage in acts of sexual violence unless confined to a secure facility.
We, therefore, affirm the May 11, 2006 order continuing the involuntary civil commitment of H.M. to the STU.