On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-188-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
J.E.G. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from a November 8, 2007 order continuing his involuntary commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior" such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense, i.e., if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment, the plan is relevant to the adequacy of the proof that the person is no longer in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A). We add the following comments.
On July 26, 2001, J.E.G. was initially temporarily committed to the STU under the general civil commitment statute, N.J.S.A. 30:4-27. Thereafter, a final order committing J.E.G. to the STU was entered on April 4, 2002. Prior orders continuing his commitment were entered on October 2, 2002, October 30, 2003, April 8, 2005, October 21, 2005, October 4, 2006, and November 8, 2007, the latter order being the subject of the present appeal. The predicate offense that prompted the Attorney General's petition for his involuntary commitment was his conviction for second-degree sexual assault upon a fifteen-year old male in July 1995. Additionally, in 1992, J.E.G. pled guilty to criminal sexual contact involving a twenty-one-year- old male. In that same year, he also pled guilty to endangering the welfare of a nine-year-old male.
The hearing that preceded entry of the order under appeal was held on October 16, 2007. Drs. Luis Zeiguer, a psychiatrist, and Dr. Robert Carlson, a psychologist, testified for the State. Dr. Timothy Foley, a clinical psychologist, testified on behalf of J.E.G.
Dr. Carlson is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are responsible for reviewing the progress and treatment of persons committed to the STU. During an interim review by the TPRC in May 2007, the TPRC approved J.E.G.'s admission to Phase IV of the STU's five-phase program, but in its October 15, 2007 report noted that the team reconsidered the recommendation and suggested that J.E.G. remain in the third phase of the program because J.E.G.'s "investment in therapy thus far has mainly ...