On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-329-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Simonelli.
Petitioner G.S.S. appeals from an order of February 14, 2008, continuing his previously-ordered involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38. Petitioner has been so confined since 2003. We affirm.
The issue before us is limited. 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 trial judge must assess "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the petitioner 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 Peretti found, among other things, that "a review of the extremely lengthy treatment records indicate that [petitioner] is not thought by his treatment team to be making substantial progress." In June 2007, the Treatment Progress Review Committee (TPRC) made an annual review of petitioner and found that petitioner "has the ability and insight to engage in a meaningful fashion in the Treatment Program if properly motivated [but i]t is this question of ongoing motivation which is somewhat perplexing to the TPRC." The TPRC recommended that petitioner "continue in Phase 3 of treatment."
This report appears consistent with a later treatment note of October 1, 2007, observing that "[petitioner] continued to make statements indicating that the treatment program is flawed and that he does not believe that he needs to alter his behaviors because of the treatment program's flaws." He further compared the S.T.U. to the "Auschwitz detention camps and Guantanamo Bay."
Petitioner challenges the opinion of the State's expert, Dr. Evan Feibusch. Dr. Feibusch diagnosed petitioner with "paraphilia N.O.S. related to his interest in adolescent males, and also a personality disorder not otherwise specified related to his difficult interpersonal relationships with other people." Dr. Feibusch noted that although petitioner was cooperative with the treatment and was able to correctly identify "relapse prevention techniques," petitioner's knowledge was more intellectual and he had not "internalized the value of what he's learned." Dr. Feibusch opined that petitioner "remain[ed] highly likely to re-offend."
Petitioner offered Dr. Vivian Shnaidman as his expert. Dr. Shnaidman was also the psychiatrist that initially interviewed petitioner and referred him to an evaluation for ongoing civil commitment. Dr. Shnaidman found petitioner "has been compliant with treatment... [and] actually... seems to enjoy treatment" and thought that petitioner "today... has a much better understanding of how to limit his deviant sexual behavior so as not to break the law." She also agreed with Dr. Feibusch's diagnosis of paraphilia N.O.S. but concluded that petitioner is capable of not "touch[ing] anybody below the age of 16, with or without their consent" and therefore is not "highly likely to commit acts of sexual violence." On cross examination, Dr. Shnaidman admitted that petitioner "still places blame on his victims" and "still has justifications" for his offenses.
Judge Perretti ultimately found that
[t]he evidence presented by the state was clear and convincing. The court is clearly convinced that [petitioner] continues to be a sexually violent predator. He suffers from abnormal mental conditions about which there is no contradiction. He has been convicted of numerous sexually violent offenses against underage boys, repeating criminal behavior even after confinement and treatment at A.D.T.C. He has demonstrated serious difficulty controlling his sex offending behavior.
He is clearly highly likely to re-offend if not continued in confinement for further treatment or for the protection of the public if the respondent ...