On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-91-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 17, 2008
Before Judges Cuff and Baxter.
R.B.B. appeals from the November 7, 2007 order that continues his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38. At oral argument, R.B.B. argued that the State presented insufficient evidence that he is likely to engage in acts of sexual violence unless confined. We affirm.
R.B.B. is a pedophile. His diagnosis also includes alcohol and methamphetamine dependence, personality disorder NOS, and LSD and marijuana abuse in the past. He does not dispute the diagnosis. He also does not contest that he committed sexually violent offenses within the definition of the SVPA.
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 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Judge Perretti found that the evidence submitted by the State clearly and convincingly established that R.B.B. continues to satisfy the statutory criteria for involuntary civil commitment pursuant to the SVPA. She found that
[R.B.B.] has extreme difficulty controlling his sexually violent behavior as has been demonstrated by his consistent regular masturbation to deviant fantasies up to the present time. It is highly likely that [R.B.B.] will commit sexually violent acts against prepubescent children within the reasonable future if not continued for further treatment in custody and for the protection of the public.
At the October 19, 2007 hearing, the State presented the report and testimony of Dr. Michael R. McAllister, a psychiatrist, treatment notes, and the report of the Treatment Progress Review Committee (TPRC). The TPRC recommended placement in Phase 3 of treatment, contrary to the recommendation of treatment providers that he remain in Phase 2. Nevertheless, the TPRC acknowledged that R.B.B. admitted "continual pedophilic masturbatory practices" and "fails to demonstrate a satisfactory understanding of empathy."
At the hearing, Dr. McAllister acknowledged that discussion of sexual offenses is an integral part of the treatment process, and R.B.B. was "quite open" about his sexual offenses. On the other hand, it seemed to him that R.B.B. took "some pleasure" in these accounts. Dr. McAllister testified that this observation is consistent with reports by R.B.B. that he continues to be aroused when he watches television and "masturbates to memories and fantasies of his victims as well." Dr. McAllister opined that R.B.B. is strongly predisposed to act on images and ideas of young children to commit other sexually violent offenses and this predisposition renders his risk of reoffense extremely high.
Our review of these findings 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). We may modify an order "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 ...