July 10, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF M.L.E. SVP-231-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-231-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Lintner and Parrillo.
M.L.E. appeals from a March 30, 2006 judgment ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We have thoroughly reviewed the record, and we find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.
M.L.E. is a forty-four year old pedophile with a history of sexually violent behavior dating back to 1988. The predicate sexual offenses for which he was convicted and sentenced to a ten-year prison term are second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, involving his then-girlfriend's twelve-year old daughter. These offenses occurred on August 8, 1994, only two years after M.L.E.'s August 1992 parole from a seven-year sentence imposed as a result of M.L.E.'s 1990 guilty plea to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, involving a former girlfriend's five-year old daughter.
Prior to his release from prison on the predicate sexual offense sentence, the State moved for M.L.E.'s civil commitment under the SVPA. Finding probable cause to believe that he was a sexually violent predator in need of commitment, the court temporarily committed M.L.E. to the STU on February 13, 2002 and following an initial hearing, a final order of commitment was entered on July 1, 2002. A review hearing was held one year later, resulting in a June 9, 2003 order for M.L.E.'s continued commitment. M.L.E. appealed and we affirmed, finding his arguments without merit, R. 2:11-3(e)(1)(E), and that "M.L.E. has not made the necessary progress in treatment. . . ." In re Commitment of M.L.E., A-5278-02T2 (App. Div. April 14, 2005) (slip op. at 2).
At the March 30, 2006 review hearing, which is the subject of this appeal, Dr. Vivian Schneidman, a psychiatrist, testified on behalf of the State. Although M.L.E. refused to participate in the clinical evaluation, Dr. Schneidman was nevertheless able to evaluate his current risk to sexually reoffend based on her thorough review of M.L.E.'s entire treatment record. Based on that evaluation, Dr. Schneidman diagnosed M.L.E. with pedophilia, polysubstance abuse and personality disorder, NOS, with antisocial traits. Pedophilia, she explained, cannot be cured and predisposes M.L.E. to commit acts of sexual violence. Moreover, his personality disorder enables M.L.E. to act out on his pedophilia and the substance abuse acts as a disinhibitor as well.
According to Dr. Schneidman, M.L.E. is also a "treatment refuser," who has never meaningfully participated in sex offender treatment and consequently has not progressed while at the STU beyond the lowest phase of the five-phase treatment program. Consequently, treatment thus far has not mitigated M.L.E.'s risk to reoffend, which Dr. Schneidman found to be "very high." And, although M.L.E.'s actuarial results indicate a less than high-risk, Dr. Schneidman nevertheless found the scores an unreliable measurement of M.L.E.'s actual risk since M.L.E.'s results would have been ever lower after his first sexual offense, yet he sexually reoffended. Indeed, M.L.E.'s history of sexually violent behavior in the community, even after incarceration on a prior sex offense and being on parole, demonstrates his propensity to commit acts of sexual violence.
At the conclusion of the hearing, Judge Perretti, crediting Dr. Schneidman's unrefuted testimony, found that M.L.E. was a sexually violent predator requiring continued commitment. The judge reasoned:
[The treatment team] report[s] he has no insight into his sexual assault cycle, no insight over his deviant arousal pattern, had not demonstrated any . . . insight into his release prevention plan, had no[t] shared his version of the index offense, and indeed denied committing either the index or the prior offenses. However, it's noted that he did enter a guilty plea to the first of his two sex offenses, which involved a first degree aggravated sex offense against a six-year-old girl.
There has been no treatment whatsoever accepted by [M.L.E.] He has been, indeed, from the very beginning of [these] notes in May of 2003 . . . a treatment refuser. There is no question about that. The notes clearly speak for themselves.
[M.L.E.] in addition to the predisposition of pedophilia, has the personality disorder that enables him to act on his deviance. The primary criteria of the personality is acting with disregard to the rights of others. So it can be seen how the personality disorder would disinhibit the urges that go with the pedophilia.
In addition, there is the substance abuse problem. And here, again, the doctor testified this is a disinhibitor. Substance abuse opens the door for deviant impulses to come and express themselves.
The fact that [M.L.E.] is a treatment refuser demonstrates to the psychiatrist that [M.L.E.] has no interest in changing himself. And a conditional discharge, in her opinion, is not appropriate, inasmuch as he has not shown any desire to cease committing further sex offenses. It's quite noteworthy that his expressed desire is to return to the scene of his crime.
In light of this conclusion, conditional discharge was not an appropriate option in this case. Nevertheless, Judge Perretti considered the discharge plan proffered by M.L.E. and rejected it, reasoning:
His plan is to return to an address at 724 Bergen Street in Newark, which I happen to note is exactly the address that he gave at the time of the preparation of his presentence report at the time that he was being sentenced for a second degree sexual assault on the 12-year-old file.
I think it's proper for a court which has sat in Newark for approximately 20 years to judicially notice what everybody knows, that is that Bergen Street is a densely populated neighborhood full of children of all ages living in public and private housing. There are numerous schools lining Bergen Street and the side streets of Bergen Street. And these schools range from day care centers, preschool, all the way up to schools for older children. This is clearly not a suggestion that the [c]court would consider reasonable as minimizing [M.L.E.'s] risk.
On appeal, M.L.E. raises the following issues:
I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.L.E. WAS SUBJECT TO SVP COMMITMENT.
II. THE COURT COMMITTED REVERSIBLE ERROR BY NOT PLACING ENOUGH WEIGHT ON THE ACTUARIAL EVIDENCE OF M.L.E.'S RISK.
III. THE COURT ERRED IN NOT GIVING THE PROPER CONSIDERATION TO THE DISCHARGE PLAN SET FORWARD ON M.L.E.'S BEHALF IN THIS CASE.
We find no merit in these contentions. R. 2:11-3(e)(1)(E).
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating 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). The court must address "his or her present serious difficulty with control[,]" and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'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) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass 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 are satisfied from our review of the record that the judge's findings are amply supported by credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of March 30, 2006. We add only the following brief comments.
While actuarial results constitute competent evidence in a civil commitment hearing, they are merely one piece of evidence for the court to review, In re Commitment of R.S., 339 N.J. Super. 507, 534 (App. Div. 2001), aff'd, 173 N.J. 134 (2002), in its "comprehensive evaluation of all evidence pertaining to the committee's . . . dangerousness . . . ." Fields, supra, 77 N.J. at 310. Here, Dr. Schneidman considered M.L.E.'s actuarial scores and rejected them as not predictive of the committee's actual risk level given M.L.E.'s previous history of repetitive sexual offenses. Similarly, the court found M.L.E.'s actuarials to be an unreliable indicator of actual risk, especially when considered in light of contrary evidence, both factual and expert, that the committee's risk level was very high.
Having properly found that M.L.E. continues to be a sexually violent predator, conditional discharge was simply not an option for the court. In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). But even if properly considered, M.L.E. presented no proof -- expert or otherwise -- of the viability of his discharge plan, which the court, based on competent evidence, found to be seriously inadequate.
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