On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 30-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2008
Before Judges Fisher and C.L. Miniman.
H.W.H. appeals from an order entered on June 11, 2008, which continued his commitment to the Special Treatment Unit 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 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 H.W.H. is now forty-four years old. In 1994, H.W.H. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), which conviction qualified as a "sexually violent offense," N.J.S.A. 30:4-27.26. The victims were eight-and nine-year old female relatives. As a result, H.W.H. was sentenced to a five-year prison term to be served at the Adult Diagnostic and Treatment Center at Avenel.
The State first petitioned for and obtained H.W.H.'s civil commitment in 1999. Review hearings resulted in orders of commitment entered on June 29, 2000, June 19, 2001, June 7, 2002, and January 10, 2003. The last of these was appealed; we affirmed by way of an unpublished opinion filed on April 14, 2004. In re Commitment of H.W.H., No. A-3465-02T2. Following another review hearing, commitment was continued by way of an order entered on July 15, 2004. This order was appealed, and we affirmed by way of an unpublished opinion filed on January 27, 2005. In re Commitment of H.W.H., No. A-7069-03T2.
Another review hearing was conducted on June 11, 2008. At that time, the court heard the testimony of the State's two expert witnesses, Dr. Pogos Voskanian and Dr. Jamie Canataro. H.W.H. neither testified nor called any witnesses. At the conclusion of the one-day hearing, the judge held that the State had proven by clear and convincing evidence that H.W.H. should continue to be committed pursuant to the SVPA. An order memorializing that determination was entered at the same time.
H.W.H. has appealed the June 11, 2008 order, arguing that the judge's findings were against the weight of the evidence. We disagree.
In her oral opinion, the judge stated that she found the State's witnesses to be credible and set forth a thorough description of the evidence she found persuasive. Among other things, the judge found that H.W.H. suffers from abnormal mental conditions that predispose him to commit sexually violent acts, has serious difficulty controlling his sexual behavior, and has "regressed in treatment." The judge summarized her findings in the following way:
The diagnosis of pedophilia is based upon [H.W.H.'s] long history of sex offending against children. The diagnosis of poly substance dependence is clearly supported by [H.W.H.'s] own self reports. His behavior, both in society and in custody clearly ...