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In re Civil Commitment of B.S.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF B.S.M., SVP-371-04

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-371-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2008

Before Judges Sapp-Peterson and Messano.

B.S.M. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntarily civil commitment pursuant to the Sexually Violent Predator Act (the SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the November 8, 2007, order of Judge Philip M. Freedman that continued his commitment after a hearing, and set the date for his next annual review as October 7, 2008. He argues that the State failed to present sufficient evidence that demonstrated he continues to "suffer [ ] from a mental abnormality or personality disorder that makes [him] 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. Alternatively, B.S.M. argues that we should remand the matter to Judge Freedman for the entry of an order that will compel the STU to implement a discharge plan in anticipation of his release to the general population. After due consideration of the record and applicable legal standards, we affirm.

I.

B.S.M. was initially committed to the STU by orders of May 12, 2004, and July 30, 2004, the latter of which we affirmed on appeal on April 6, 2006. In re Civil Commitment of B.S.M., No. A-7071-03 (App. Div. April 6, 2006). His commitment was continued by order of July 31, 2006, which we reviewed and affirmed on April 4, 2007. In re Civil Commitment of B.S.M., No. A-6498-05 (App. Div. April 4, 2007). We set forth the background predicate offenses that gave rise to his initial commitment in that opinion as follows:

B.S.M. was convicted of criminal sexual con[tact] and criminal restraint in connection with two attacks involving trickery and impersonation of a medical doctor [in 1995]. While awaiting sentencing on these convictions, B.S.M. lured a 14-year-old girl into his car by telling her that he was a medical doctor, and was subsequently convicted of [simple] assault. In March 1998, after being released, B.S.M. committed a series of attacks on prostitutes in which he pretended to be a police officer in order to lure his victims into a van. On February 25, 1999, B.S.M. was convicted of three counts of second-degree kidnapping and one count of third-degree aggravated criminal sexual contact.

B.S.M. was sentenced to the Adult Diagnostic and Treatment Center at Avenel, and prior to maxing out on that sentence, the State petitioned under the SVPA for an order of commitment, resulting in B.S.M.'s initial commitment to the STU.

The hearing that gave rise to the order under review occurred on October 23, 2007. The State called as its first witness, Doctor Luis Zeiguer, a psychiatrist who attempted to evaluate B.S.M. at the STU on October 18, 2007. Zeiguer testified that B.S.M. initially refused to be interviewed, but, after Zeiguer conducted an interview with another resident, B.S.M. "approached [him] and . . . asked [him] if [he] would be able to promise [B.S.M.] [] a favorable outcome from this hearing as a result of [his] opinion." Zeiguer told B.S.M. he could not make such a promise, and no interview took place.

Zeiguer, nonetheless, was able to formulate opinions regarding B.S.M.'s condition based upon the records and his prior interviews. Zeiguer reviewed B.S.M.'s offending history and his treatment records while at the STU. He noted that B.S.M. was attending treatment "religiously," and "was very involved." However, Zeiguer noted that B.S.M.'s treatment team did not claim to have "operated changes in [B.S.M.'s] personality or sexuality, that would make him safer." Zeiguer diagnosed B.S.M. as suffering from "paraphilia N.O.S.," noting that his prior offending history involves "coer[cion] . . . and when he does not coerce, he engages under false pretense."

Zeiguer noted that B.S.M. continued to offend after his arrests and sentences, noting B.S.M. was "willing to risk his freedom" in order to continue his behavior. Zeiguer also diagnosed B.S.M. as suffering from "a personality disorder N.O.S.," noting "characteristics of anti-social personality" and "impulsive" behavior. Zeiguer opined that B.S.M. was "a high risk" to re-offend if not confined.

On cross-examination, Zeiguer acknowledged that some of B.S.M.'s victims were prostitutes, but he refused to accept that his sexual activities had been "consensual." Zeiguer also acknowledged that B.S.M. was in Phase Three treatment since 2006, provided "consistent versions of [his] offenses," and "passed a couple of polygraphs" without giving "deception signals to the polygrapher." Zeiguer also conceded that B.S.M.'s incarceration, and subsequent commitment to the STU was the first significant detention he faced, however, he stressed that he was not recommending that B.S.M. be "let [] out to see if he [was] deterred."

Nicole Paolillo, a staff psychologist and member of B.S.M.'s Treatment Progress Review Committee (TPRC) at the STU also testified. She offered the same diagnosis of B.S.M.'s condition. Paolillo noted that B.S.M. was "generally anxious" and "evasive" during his most recent interview, and gave "totally contradictory" statements regarding his sexual fantasies. She concluded that B.S.M. was "in the beginning stages of [phase] three [treatment]," though she noted his treatment team observed "improvement."

Judge Freedman rendered his oral opinion on November 8, 2007. He noted first that B.S.M.'s own "maintenance contract," in which he described his offending history, characterized "every offense" as "picking up prostitutes by impersonating police officers." However, the judge noted this overlooked his offense involving the young girl. The judge also took note of B.S.M.'s refusal to be interviewed, finding this "goes to his attitude and to his progress in treatment and shows really a lack of progress in treatment."

The judge accepted Zeiguer's diagnoses regarding B.S.M. He agreed that B.S.M.'s offending conduct was not "just a dispute over fees of a prostitute." The judge noted B.S.M. "pulled a gun" on one of the women, and agreed with Zeiguer's opinion that it "was very important for [B.S.M.] to feel that he is making the prostitute the victim." While the judge found B.S.M. "ha[d] made certain improvements, he ha[d] far from completed sex offender treatment . . . ." He found "no basis to make any conditional release at this time," and concluded that the State had proven by clear and convincing evidence that B.S.M. suffered from a "mental abnormality in the form of paraphilia and a personality disorder," was still predisposed to "engage in acts of sexual violence to such a degree that he would in fact have serious difficulty controlling those behaviors," and was "highly likely to engage in those acts within the reasonable foreseeable future." See In re Civil Commitment of W.Z., 173 N.J. 109, 132-33 (2002). He ordered B.S.M.'s continued commitment and this appeal followed.

II.

The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63, (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial "judge's determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). On appeal, "[t]he appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

We find no basis to disturb the judge's findings and conclusions regarding the adequacy of the State's proofs. B.S.M. has demonstrated repetitive, sexually violent behavior that was never significantly deterred despite his prior convictions after which he continued to re-offend. The TPRC report indicated that he continues to show no "remorse for his actions," and displays "impulsivity and aggression." Zeiguer's report noted that B.S.M. continues to pose a "very high risk" for re-offense that "has not yet been significantly mitigated by treatment or by the aging process."

Regarding B.S.M.'s alternative argument, that we should remand the matter to Judge Freedman for entry of an order requiring conditional discharge planning, we note that the SVPA requires that civil committees be provided with appropriately tailored treatment to address the specific needs of sexually violent predators. N.J.S.A. 30:4-27.34(b). A conditional discharge plan appropriately anticipates a resident's "safe reintegration into the community." W.Z., supra, 173 N.J. at 130. However, the State has considerable discretion in determining the treatment for a person committed under the SVPA. See Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 736, 148 L.Ed. 2d 734, 748 (2001).

In this case, Paolillo testified that for a variety of reasons, B.S.M. was still at the initial stages of Phase Three treatment, and lacked a true understanding of his offending conduct. We will not second-guess the treatment professionals regarding recommendations they have made when those are based upon substantial evidence and demonstrate no abuse of discretion.

Affirmed.

20080625

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