On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 378-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez and C.S. Fisher.
S.E.J. appeals from a final order, entered on January 11, 2008, 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 S.E.J. is 56 years old. He was convicted in 1987 of aggravated sexual assault, N.J.S.A. 2C:14- 2(a), for the forcible rape, at gunpoint, of a twenty-two year old woman, and sentenced to a twenty-five year prison term with a twelve-and-one-half year period of parole ineligibility. S.E.J. also pled guilty in 1990 to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-36.
The State originally petitioned for S.E.J.'s civil commitment on October 1, 2004. He was temporarily committed at that time, and, on May 23, 2005, following a hearing, S.E.J. was committed. A review hearing was also scheduled for the following year as statutorily mandated. At the review hearing on May 4, 2006, S.E.J. was again found to be in need of civil commitment.
S.E.J. appealed the May 23, 2005 and May 4, 2006 orders. By way of an unpublished opinion filed on April 26, 2007, we affirmed both those orders. In re Civil Commitment of S.E.J., Nos. A-4994-04T2 and A-5771-05T2.*fn1
A review hearing was conducted on January 3, 2008. By order entered on January 11, 2008, S.E.J.'s commitment pursuant to the SVPA was continued for another year. In this appeal, S.E.J. argues that the judge's findings were against the weight of the evidence and that the January 11, 2008 order should therefore be reversed.
At the January 3, 2008 review hearing, Judge Philip M. Freedman heard testimony from the State's witnesses, Dr. Michael R. McAllister and Dr. Nicole Paolillo. S.E.J. did not testify and called no witnesses. In his oral decision of January 11, 2008, Judge Freedman found the State's witnesses to be credible, set forth a thorough description of the evidence he found persuasive, and concluded that
[S.E.J.] still suffers from a mental abnormality and a personality disorder that . . . predispose him to engage in acts of sexual violence by affecting him cognitively, emotionally, and volitionally, and that he would have serious difficulty controlling his ...