January 14, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF B.J.M.*FN1 SVP-276-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-276-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2007
Before Judges Parker and R. B. Coleman.
Defendant, B.J.M., appeals from a September 20, 2006 order authorizing his continued involuntary civil commitment as a sexually violent predator. After a careful review of the record, we find that Judge Serena Perretti's decision was an appropriate exercise of judicial discretion, and we affirm the order.
To be deemed a sexually violent predator under New Jersey's Sexually Violent Predator Act (SVPA), an individual must have been convicted, adjudicated delinquent, found not guilty by reason of insanity of a "sexually violent offense" or declared incompetent to stand trial. N.J.S.A. 30:4-27.26(b). The following offenses qualify as sexually violent in nature: aggravated sexual assault, sexual assault, aggravated criminal sexual contact, sexual contact, certain forms of kidnapping and felony murders, attempts to commit the aforementioned acts, and all criminal offenses with substantially the same elements as those offenses. N.J.S.A. 30:4-27.26(a).
To satisfy the provisions of this statute, the State also has the burden of demonstrating that the individual is a threat to the health and safety of others because he "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(b); see In re Commitment of W.Z., 173 N.J. 109, 132 (2002) (there must be a showing that defendant has serious difficulty controlling his sexually violent behavior and is highly likely to reoffend). The State must prove all of the statutory elements by clear and convincing evidence. In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007); In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993).
On appeal, the scope of review is "extremely narrow, with the utmost deference accorded to 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). We will disturb the trial court's ruling "'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.) certif. denied, 177 N.J. 490 (2003) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).
The underlying facts in defendant's case were detailed in a 2003 unpublished opinion of this court. In re Civil Commitment of B.J.M., No. A-5119-02T2, (App. Div. February 7, 2005) (slip op. at 2-9). Defendant has had a history of persistent and pernicious legal infractions. The first sexually related charge against B.J.M. occurred while he was incarcerated at the Training School for Boys at Jamesburg in 1982. In 1985, defendant was charged with first degree kidnapping, second degree sexual assault and third degree burglary in connection with the abduction of a six-year-old girl. He admitted to having sex with this girl and pled guilty to the amended charges of fourth degree interfering with the custody of a child, second degree attempted sexual assault, and third degree burglary. After he was paroled in 1987, B.J.M. reoffended and pled guilty to a charge of second degree kidnapping. He was again released on parole in January 1997 only to commit another offense in March 1997. For that attempted kidnapping, he was sentenced to an eight-year prison term with two years of parole ineligibility. Based on evaluations conducted at Southwoods State Prison, the State filed a petition for defendant's civil commitment in October 2002. That petition was granted by Judge Philip Freeman on April 28, 2003 and has been continued several times after review hearings.
At the hearing that led to this appeal, Dr. Stanley R. Kern, whose qualifications as a psychiatrist were stipulated, testified concerning B.M.J.'s progress during his civil commitment. Dr. Kern, acting as part of defendant's treatment team, interviewed defendant for forty-five minutes prior to the subject review hearing, and he authored a report in association with this case. Dr. Kern diagnosed defendant as having pedophilia and anti-social personality disorder. He also recognized defendant had a history of alcohol and drug use.
Although Dr. Kern noted defendant has made some progress, including positive responses to anti-psychotic mediation, he still opined it "[h]ighly likely [defendant] would reoffend." While being interviewed, defendant even "acknowledged that he has been fantasizing and masturbating to images of young girls on a monthly basis."
Following the close of evidence at the review hearing, Judge Perretti ruled from the bench. She found that:
The testimony and evidence was not contradicted. It is clear and convincing. The respondent continues to be a sexually violent predator, suffering from abnormal mental conditions and personality disorders that adversely impact his emotional, cognitive and volitional capacities so as to predispose him to commit sexually violent acts.
He has serious difficulty controlling his sex offending behavior as he has more than amply demonstrated in the past. There has been insufficient progress in sex offending therapy to in any way whatever mitigate the risk that he presents to recidivate, that risk being highly likely.
There will be a one year review.
We affirm the September 20, 2006 order to continue defendant's civil commitment substantially for the reasons articulated more fully by Judge Perretti in her oral decision on that date. Upon review of the record, we are convinced the trial court's findings are firmly supported by substantial credible evidence, and the court's legal conclusions are consistent with the prevailing law on the issue. The State established by clear and convincing evidence that defendant suffers from a mental disorder that causes him to be a serious danger to society, and that if his involuntary commitment in a secure facility for care, custody and treatment were not continued, he would likely engage in sexually violent behavior.