On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-389-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
L.S.K. 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 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 an order of November 2, 2007, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Serena Perretti, J.S.C., in her oral opinion of November 2, 2007.
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.
Our review of a commitment pursuant to the SVPA is extremely 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.
Prior to being committed to the STU in 2005, L.S.K., who is now forty-one, had served a seven-year custodial sentence at the Adult Diagnostic and Treatment Center (ADTC) arising out of his guilty plea to first-degree aggravated sexual assault, two counts of second-degree sexual assault, and one count of third-degree endangering the welfare of a child. Those offenses were committed against L.S.K.'s two nephews and niece. In addition to those convictions, L.S.K. was also convicted of second-degree sexual assault of a fifteen-year-old girl in 1989.
Following his initial commitment to the STU on January 12, 2005, a final order of commitment was entered in May 2005. Subsequent orders continuing his commitment were entered on December 2, 2005 and November 8, 2006. Both orders were affirmed on appeal. See In re Civil Commitment of L.S.K., No A-2270-05T2 (App. Div. June 14, 2006); see also In re Civil Commitment of L.S.K., No. A-1800-06T2 (App. Div. April 10, 2007). An order continuing his commitment was entered on November 2, 2007.
The hearing that preceded entry of the November 2, 2007 order under appeal was held the same day. Dr. Michael R. McAllister, a psychiatrist, and Dr. Rosemarie Stewart, a psychologist and member of L.S.K.'s treatment team, testified on behalf of the State. No witnesses testified on behalf of L.S.K. The parties stipulated to Dr. McAllister's and Dr. Stewart's qualifications. The primary basis for Dr. McAllister's testimony was his report, as L.S.K. declined an interview. Dr. Stewart was a member of L.S.K.'s Treatment Progress Review Committee (TPRC).
At the time of the hearing, L.S.K. was in Phase Two of STU's five-phase program. The Multidisciplinary Treatment Team Report of June 27, 2007 revealed that L.S.K. needed to continue Phase Two treatment, given there was dirty urine, the possession of pornography, possession of a credit card, as well as a lack of participation and motivation in the treatment.
Dr. McAllister testified he conducted his evaluation of L.S.K. without the benefit of an interview with L.S.K. because L.S.K. did not wish to participate. Based upon the records he reviewed, Dr. McAllister diagnosed L.S.K. as suffering from pedophilia, paraphilia, various forms of drug abuse, and antisocial personality disorder. Dr. McAllister testified that from his review of the records, L.S.K. had performed poorly in his substance abuse and sexual offender treatments, was generally uncooperative, remained unable to empathize with his victims, and as a result was at a very high risk to re-offend sexually. The doctor explained that the presence of the ...