On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-308-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. S. Fisher.
S.B.M. appeals from the December 20, 2007 judgment, which continued his involuntary commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and set a one-year review date. We reverse and remand for a new hearing.
On March 20, 2007, S.B.M. was temporarily committed to the STU. The trial court has reviewed and continued the commitment on several occasions. On the most recent order of continuing commitment, the evidence before the court can be summarized as follows. Dean Michael DeCrisce, M.D., a forensic psychiatrist with the STU, prepared a report and testified. He diagnosed S.B.M. with: (1) major mental disorder; (2) alcohol abuse; (3) personality disorder; and (4) mental retardation. Dr. DeCrisce concluded that S.B.M. "has a number of factors, which contribute to a high risk of recidivism, repeated sexual crimes, and violent sexual crimes upon strange victims." He recommended continued confinement to the STU as necessary for care, control and treatment. In reaching this recommendation, Dr. DeCrisce relied on the reports and notes of health care professionals who treated S.B.M.
During the testimony of Dr. DeCrisce, the judge interrupted him to ask, "Doctor, is there any reasons why [S.B.M.] wears those black glasses?" The doctor responded that S.B.M. had a history of eye surgery. The judge then questioned Dr. DeCrisce, a forensic psychiatrist, about what sort of eye surgery. The doctor indicated that he was not certain whether the dark eyeglasses had been prescribed. The judge ordered S.B.M. to "take them off." S.B.M. responded, "I have a medical . . ." The judge cut him off and ordered him to take them off several times. The doctor volunteered to check the medical records. After an adjournment, Dr. DeCrisce reported that, according to comments in the medical record, "tinted lenses were medically necessary." The judge then made the following categorical statement: "use of black glasses in courtrooms are universally considered to be threatening gestures." The judge did not order S.B.M. to take off the dark glasses. However, several minutes later, while delivering her decision, the judge said:
The court is satisfied that there is no established medical cause or reason for the black glasses, which [S.B.M.] voluntarily doffed.
The record also contains the report of the Treatment Program Review Committee (TPRC). One of its members, Robert S. Carlson, Psy.D., a clinical psychologist, testified. He recommended continued commitment and Phase 2 treatment. The report concluded that S.B.M. appears to be reluctant to address prior sexual misbehavior."
The standard for commitment pursuant to the SVPA requires the State to prove, by clear and convincing evidence, 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). See also In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). Thus, 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 he or she . . . will reoffend." W.Z., supra, 173 N.J. at 132-33. 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).
Our scope of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and "give utmost deference to the commitment finding and reverse only for 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). In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); See also In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
Here, we are very concerned by the judge's demeanor during the hearing. She went off on a tangent regarding S.B.M.'s wearing dark glasses. She interrupted relevant testimony to pursue this inquiry. The judge demanded that S.B.M. remove the glasses repeatedly and disbelieved him, without any basis, when he asserted that they were medically approved and that he had authorization to use them. Even after it was established that S.B.M.'s use of dark glasses was "medically necessary," the judge nonetheless stated on the record that "there is no established medical cause or reason for the black glasses."
This is worrisome to us because the judge is the finder of fact. The issue of the dark glasses was trivial, it had no relevance to the issue of S.B.M.'s continued confinement at the STU. But, it showed the judge's unwillingness to believe S.B.M., even when his statement that he had a medical form was corroborated. It also calls into question the judge's ability to ...