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In re Civil Commitment of W.Z.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 20, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF W.Z.M., SVP-271-02

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-271-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2008

Before Judges C.S. Fisher and C.L. Miniman.

W.Z.M. appeals from an order, entered on November 5, 2007, which continued his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. We affirm.

A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when suffering 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 for control, care and treatment." N.J.S.A. 30:4-27.26. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).

To warrant commitment of an individual or the continuation of a prior commitment, the State must prove 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 Commitment of W.Z., 173 N.J. 109, 132 (2002). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). In that setting, the court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The State met its burden here.

The record reveals that W.Z.M. is now twenty-nine years old. In 1997, when nineteen years old, W.Z.M. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was sentenced to a seven-year term, with no period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center in Avenel.

The State first petitioned for W.Z.M.'s civil commitment in 2002. Following a four-day hearing, at which the court heard the testimony of the State's two expert witnesses and W.Z.M.'s two expert witnesses, the judge rendered an oral opinion in which he concluded that the State had proven by clear and convincing evidence that W.Z.M. should be committed pursuant to the SVPA. An order memorializing that determination was entered on February 19, 2003.

W.Z.M. appealed. By way of an unpublished opinion filed on June 10, 2005, we affirmed the February 19, 2003 order of commitment. In re Civil Commitment of W.Z.M., No. A-3883-02T2.

A review hearing was conducted on November 5, 2007 before a different judge than heard the earlier matters. By order entered that same day, W.Z.M.'s commitment pursuant to the SVPA was continued for another year. In this appeal, W.Z.M. argues that the judge's findings were against the weight of the evidence and that the November 5, 2007 order should therefore be reversed.

At the November 5, 2007 review hearing, the judge heard testimony from the State's witnesses, Dr. Nicole Paolillo and Dr. Evan Feibusch. W.Z.M. testified on his own behalf, but called no expert witnesses. In an oral decision rendered on November 5, 2007, the judge found the State's witnesses to be credible, set forth a description of the evidence found persuasive, and concluded that W.Z.M. "suffers from abnormal mental conditions and [a] personality disorder that predispose him to commit sexually violent acts because of their influence on his volitional, cognitive and emotional functioning."

The judge also found that W.Z.M. "has serious difficulty controlling his sexual behavior, including his sexually violent behavior against children," referring to the repeated molestation of an eleven year old boy that culminated in W.Z.M.'s conviction in 1999. Based on these and other findings, the judge issued the order now under review.

In considering the argument posed in this appeal, our scope of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). See also In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). After carefully reviewing the record on appeal, we find no abuse of discretion.

The record more than adequately supports the judge's determination that W.Z.M. suffers from mental abnormalities that predispose him to commit sexually violent acts, that he has serious difficulty with control over his dangerous behavior, and that he is highly likely to reoffend. In arguing to the contrary, W.Z.M. forcefully contends that the judge erroneously relied upon the testimony of the State's experts regarding their diagnosis of pedophilia. In this regard, W.Z.M. contends that his involvement with an adult inmate for the two-year period preceding the review hearing calls into question the pedophilia diagnosis and also challenges one of the reasons cited by the State's experts in their finding of a high risk of reoffense, i.e., the contention that W.Z.M. has never previously lived with an intimate partner. Certainly, W.Z.M.'s arguments in this regard are not wholly without merit. But our standard of review does not extend so far as to question, in these circumstances, what the judge was or was not entitled to find persuasive after having heard the testimony and watched the witnesses as they testified. Applying this standard of review, we conclude that all the judge's findings are supported by testimony the judge was entitled to credit, that these findings are entitled to our deference, and that the judge did not abuse her discretion in continuing the commitment of W.Z.M. pursuant to the SVPA.

Affirmed.

20080620

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