On appeal from Superior Court of New Jersey, Law Division, Essex County, No. SVP-89-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Lyons.
R.X.W. appeals from a judgment entered on November 1, 2006, continuing his involuntary civil commitment to the Special Treatment Center as a sexually violent predator under 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.
R.X.W. was originally committed as a sexually violent predator in 2000, at the end of his five-year prison term for sexual assault. The victim was his seventeen-year-old niece. Periodic review hearings were held at which R.X.W.'s civil commitment was ordered continued. R.X.W.'s first appeal to this court in connection with his involuntary civil commitment was from an order entered on March 21, 2002, continuing that commitment. We remanded the matter for further findings, and in response to that remand, the judge handling the commitment proceedings found that R.X.W. had substantial difficulty controlling his sexual behavior and, if not civilly committed, was highly likely to reoffend with acts of sexual violence. A further review hearing was conducted in March 2003, and R.X.W.'s continued commitment was again ordered. R.X.W. appealed that order, and we affirmed that order in an unpublished opinion. In re Civil Commitment of R.X.W., No. SVP-89-00, No. A-331-03T2 (App. Div. Dec. 30, 2004). Within that opinion, we set forth the details of R.X.W.'s extensive criminal history prior to his conviction for sexually assaulting his niece. He had six adjudications as a delinquent, commencing when he was seven or eight years old, for offenses ranging from malicious mischief to robbery. He had eighteen convictions as an adult, for offenses ranging from shoplifting to debauching the morals of a child. He pled guilty to two counts of the latter offense; the victims were his sisters, who he forced to perform fellatio upon him.
R.X.W. was twenty at the time while his sisters were nine and four years old, respectively.
R.X.W. now appeals from the order entered following another review hearing conducted on October 31, 2006, again continuing his civil commitment as a sexually violent predator. At that review hearing, the State was required to establish by clear and convincing evidence that R.X.W.'s "present mental condition . . . creates a likelihood of future sexually violent behavior." State v. Mumin, 361 N.J. Super. 370, 383 (App. Div. 2003) citing In re Commitment of P.C., 349 N.J. Super. 569, 580 (App. Div. 2002)). Having reviewed this record, we are satisfied that the State amply met its burden of proof on this question.
At the hearing, Vivian Shnaidman, M.D., a psychiatrist, testified for the State about her examination of R.X.W. After noting his dysfunctional family background, she told the judge that she had diagnosed R.X.W. as suffering from substance abuse, paraphilia NOS, and antisocial personality disorder. She explained that R.X.W. had expressed the view that he did not need treatment and thus had not participated in treatment programs at the Special Treatment Unit. She explained that R.X.W. is "somebody that really doesn't have much insight or much willingness to accept that these deviant sexual practices really are deviant and can and should be changed." She described R.X.W. as a "deeply disturbed individual" who was "highly likely to re-offend" if not continued in commitment for further treatment. R.X.W. elected not to present any evidence but to rely upon his cross-examination of Dr. Shnaidman.
After the proceedings concluded, Judge Philip Freedman placed a comprehensive opinion on the record. Judge Freedman reviewed the testimony given by Dr. Shnaidman but noted that ultimately, "the final determination with regard to dangerousness lies with the Court, not with the expertise of psychiatrists. . . ." Judge Freedman noted that R.X.W. has been described as a rebellious, nonconforming, hedonistic individual who is motivated primarily by a desire for immediate gratification. Impulse control, frustration tolerance, delay of gratification are likely further impaired by his significant substance abuse history.
Despite numerous arrests and jail terms he shows little capacity to learn from experience.
Judge Freedman concluded by ordering R.X.W.'s continued commitment as a sexually violent predator and directing that a further review hearing be held on October 16, 2007.
We have carefully reviewed this record. The order of November 1, 2006, is affirmed substantially for the reasons stated by Judge Freedman in ...