On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-8-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Graves.
Following service of a sex offender sentence for third-degree aggravated criminal sexual contact, T.M.M. was committed to the Special Treatment Unit on September 17, 1999 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He had periodic reviews thereafter at which the commitment was continued. He now appeals orders continuing the commitment on February 10, 2006 and March 22, 2007. We affirm.
By way of background, the predicate offense occurred on August 5, 1996, when T.M.M. was twenty-two years old.*fn1 At approximately 1:00 a.m., T.M.M. climbed through a bedroom window of a halfway house for mildly mentally handicapped individuals where his brother and the fifty-four year old mentally handicapped victim, E.K., resided, but T.M.M. initially left the premises when he was told to leave. At approximately 3:20 a.m., T.M.M. again climbed though his brother's window where he proceeded to E.K.'s bedroom, and touched her breast while she slept, awakening her. E.K. immediately screamed and T.M.M.'s brother eventually told T.M.M. to leave.
On November 20, 1996, T.M.M. pled guilty to one count of third-degree aggravated criminal sexual contact, a sexually violent offense pursuant to N.J.S.A. 30:4-27.26(a). He was sentenced on May 2, 1997, to a four-year term to be served at the Adult Diagnostic and Treatment Center (ADTC). Upon his release from the ADTC on July 15, 1999, T.M.M. was temporarily civilly committed to the Ann Klein Forensic Center as a sexually violent predator. At the time of his initial commitment, T.M.M. was diagnosed, on August 30, 1999, with the following mental abnormalities and/or personality disorders: frotteurism, paraphilia not otherwise specified (NOS), alcohol dependence in forced remission, and borderline intellectual functioning. Upon the State's petition and following a hearing on January 13, 2000, the Law Division ordered T.M.M.'s continued involuntary commitment at the Special Treatment Unit (STU), where he has since remained, being periodically re-evaluated and recommitted ten times.
In an unpublished opinion, we affirmed orders of July 16, 2002 and July 30, 2003 that T.M.M. continued to be a sexually violent predator in need of involuntary civil commitment. In re Civil Commitment of T.M.M., SVP-8-99, Nos. A-155-02T2, A-6711-02T2 (App. Div. May 18, 2004) (slip op. at 4). At the contested July 16, 2002 review hearing, T.M.M. introduced the testimony of Dr. Timothy Foley, who testified that T.M.M. was not "likely to commit another act of sexual violence if not confined to the Special Treatment Unit." However, Dr. Michael McAllister testified that T.M.M. was making "poor progress in treatment," and that "he is extremely likely" to act out his sexual urges "and reoffend if he were released." According to Dr. McAllister, T.M.M. "created a sham with treatment. He has created . . . a false perversion that is limited to frotteurism instead of . . . the full nature of his sexual perversion." In addition, Dr. Jeffrey Singer testified that T.M.M. was "right below the severe or significant range" in terms of the risk factors for recidivism, which "predispose[d] him to commit an act of sexual violence."
Dr. McAllister testified again at the July 30, 2003 hearing that T.M.M. showed "a rather slow progress" in treatment and there would be a "significant" risk of another offense if he were to be released. Dr. Uri Amit defended the Annual Review Report of the Treatment Progress Review Committee, which found "limited progress" on the part of T.M.M., and that "[h]is level of risk for reoffense, therefore, remains at present, unacceptable" and "largely  unmitigated."
On both occasions, Judge Perretti made the requisite findings that (1) T.M.M. had been convicted of a sexually violent offense, (2) suffers from a mental abnormality or personality disorder, and (3) there is clear and convincing evidence that T.M.M. is highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment. Accordingly, we affirmed the orders then under review. In re Civil Commitment of T.M.M., supra, at 4.
Thereafter, T.M.M.'s involuntary civil commitment was continued by orders of June 29, 2004, February 17, 2005 and February 10, 2006. The latter, which is one of two orders now on appeal, was preceded by plenary hearings on December 13, 2005 and January 6, 2006, at which the State produced Drs. Manuel Eiser and Luis Zeiguer, as well as STU commitment resource team leader, Jenna Caccese. Caccese prepared a STU discharge plan update report and testified that T.M.M.'s proposed housing site, My Brother's Keeper, was inappropriate in that it failed to meet either the security or substance abuse needs of T.M.M., who required a moderate-to-high level of security and who, in Caccese's opinion, had not put much effort thus far into treatment. In contrast, T.M.M. produced Reverend Oscar Hernandez, administrator of facility operations at My Brother's Keeper, who testified the facility is a substance abuse counseling residence willing to accept sex offenders and has sufficient security, including cameras and 24-hour monitoring.
The expert medical testimony, however, was unrefuted. Psychologist Eiser authored the treatment progress review committee (TPRC) report of June 9, 2005 and testified that T.M.M. was only in the very early stages of Phase Three treatment, which he started in June 2005. Based on treatment reports, Dr. Eiser testified that although T.M.M. had regular attendance at treatments and performed work duties adequately, he had only rudimentary familiarity with the sexual assault cycle, was an infrequent group contributor, and is unaware of the treatment he needs to work on. "[T]he main thing with [T.M.M.] is his motivation."
Psychiatrist Zeiguer prepared a clinical psychiatric assessment report, dated December 16, 2005, which was based upon, among other things, treatment notes and two ninety minute interviews with T.M.M. Dr. Zeiguer opined that T.M.M. is not suffering just from frotteurism, and, instead, diagnosed him with paraphilia NOS on Axis I based on non-consent because T.M.M. is not satisfied merely by touching. In addition, Dr. Zeiguer opined that T.M.M.'s paraphilia and alcohol abuse make it difficult to deter him, especially since T.M.M. has disregarded previous warnings by his probation officer and his mother.
According to Dr. Zeiguer, T.M.M. has low-to-average intelligence complicated by learning disabilities. While Dr. Zeiguer believed that T.M.M. has the capacity to learn and understand, he also opined that T.M.M. was not truthful in reporting that his sexual needs have disappeared. The expert concluded that it is "highly likely" that T.M.M. would commit ...