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In re Civil Commitment of B.S.M.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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