On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-354-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Alvarez.
M.E.H. appeals from a judgment entered May 5, 2006, committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record in light of the contentions advanced on appeal, we affirm.
M.E.H. contends that the commitment court erred because it based its decision to civilly commit him on "unproven allegations of misconduct." M.E.H. also asserts that the due process clause requires proof beyond a reasonable doubt for SVPA involuntary civil commitments. In his pro se brief, M.E.H. further contends that he was denied the effective assistance of counsel, and that the SVPA is unconstitutional because it does not require jury trials and violates the prohibition against ex post facto laws.
The scope of appellate review of a judgment of civil commitment is exceedingly narrow. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). 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." In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "'utmost deference'" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., supra, 339 N.J. Super. at 459 (App. Div. 2001) (quoting Fields, supra, 77 N.J. at 311). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. (citing Fields, supra, 77 N.J. at 311). "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) (citing Fields, supra, 77 N.J. at 311).
On April 7, 1997, M.E.H., who is presently forty-six years old, pled guilty to second-degree sexual assault resulting from the rape of A.P. He was sentenced to ten years in prison. Pursuant to the plea agreement, unrelated first-degree charges as to the rape of a second victim, T.M., were dismissed. Initially, both sets of charges were for first-degree aggravated sexual assaults. M.E.H. disputes the charge as to T.M. and claims she was a prostitute with whom he had a disagreement as to price, although T.M. had no criminal history. The assault on A.P. occurred May 1, 1996, when she experienced car trouble on the Garden State Parkway. M.E.H. drove by her disabled vehicle and offered her a ride as they were headed in the same direction. The disputed attack on T.M. occurred about two months later on June 27, 1996. M.E.H. would have completed the sentence imposed on the sexual assault on A.P. on January 15, 2004, and been released, but for the State's petition for his civil commitment. The hearing was delayed for some time at the request of his attorney.
Previously, on September 25, 1990, M.E.H. entered a guilty plea to a charge of criminal sexual contact and established as the factual basis that he forcibly touched the victim's breasts, vagina and buttocks. He was sentenced to three years probation and ordered to pay restitution. In that case, the victim, a former girlfriend, claimed that approximately one year after the parties' relationship ended, M.E.H. offered to work on her car. When she went to his home for that purpose, on October 14, 1988, M.E.H. physically restrained and raped her.
On October 24, 1985, M.E.H. was arrested and charged in Massachusetts on two counts of rape of a child, and five counts of indecent assault and battery on a child. The alleged victims were a nine-year-old and a twelve-year-old. During the police investigation, M.E.H. admitted having sex with the twelve-year-old and admitted to police that the child screamed when he penetrated her. All charges involving the children were ultimately dismissed. Earlier, on June 11, 1982, M.E.H. was arrested for attempted sexual assault; on August 26, 1982, he pled guilty to a downgraded plea of simple assault.
As Judge Perretti correctly found, defendant's convictions for sexual assault in 1997 and criminal sexual contact in 1990 are the predicate offenses necessary for commitment under the SVPA. N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predators' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).
At the commitment hearing, the State must also prove the individual poses: 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. [In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002).]
Under 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 ...