December 16, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.S., SVP-456-07
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-456-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2008
Before Judges Carchman and Simonelli.
Appellant J.S. appeals from an August 17, 2007 judgment committing appellant as a sexually violent predator to the Special Treatment Unit (STU). Judge Perretti found by clear and convincing evidence that appellant suffers from mental abnormalities and personality disorders, which predispose him to commit sexually violent acts. She further concluded that appellant has serious difficulty controlling his sexually violent behavior and that he is highly likely to re-offend if not confined. We affirm.
Appellant, a 27-year-old, HIV-positive pedophile, was convicted of sexually assaulting two young girls. In 1997, he was adjudicated, as a juvenile, of a second-degree sexual assault on N.W., a three-year-old sister of a friend. After being sentenced to a term of probation that included group therapy for sex offenders, appellant violated his probation and was sentenced to an indeterminate term until his eighteenth birthday. After release, appellant ceased attending treatment despite an apparent need premised on his demonstrating a wider range of sexually deviant behavior. A 1997 psychiatric report concluded that appellant was a significant risk for recidivism.
This report proved prescient as between December 26, 2001 and January 4, 2002, appellant sexually assaulted seven-year-old J.O. Appellant pled guilty to second-degree sexual assault, and was sentenced to a six-year term at the Adult Diagnostic and Treatment Center (ADTC) and community supervision for life. Appellant admitted that his treatment had not helped him control his urges to molest the index offense victim.
Appellant's time at the ADTC proved unsuccessful. In some instances, he refused treatment. Despite his being HIV and Hepatitis-B positive, he engaged in unprotected sex with other inmates on a regular basis, and he refused to participate or complete part of the treatment regime. The treatment team at ADTC concluded that appellant demonstrated a lack of internal control and disregard for consequences of his behavior.
In April 2007, the State filed a petition to commit appellant under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to 27.38. Pending a final hearing and finding probable cause, the judge temporarily committed appellant to the STU.
At the initial commitment hearing, the State proffered two witnesses-Evan Feibusch, M.D. and Brian Friedman, Psy.D. After describing his interview with appellant as well as his consideration of appellant's record, Dr. Feibusch concluded that while appellant's Static 99 score reflected a medium lower range of risk, appellant is highly likely to re-offend. The doctor based this conclusion on what he opined was appellant's need for deviant behavior, his disregard for the rights of others, his failures in past treatment and his inability to modify behavior through therapy as well as his inability to control sexual behavior even in a highly supervised environment.
Dr. Friedman reached a similar result. Although appellant refused to meet with the doctor, the doctor had the benefit of prior evaluations and records. After an extensive presentation before Judge Perretti, Dr. Friedman concluded that appellant was highly likely to re-offend.
Judge Perretti concluded that both Dr. Feibusch and Dr. Freidman provided an adequate basis to conclude that appellant was properly diagnosed as suffering from pedophilia, personality disorder and had serious difficulty in controlling his sexually violent behavior. She concluded that the State had established by clear and convincing evidence that appellant is a sexually violent predator who suffers from mental abnormalities and personality disorders, which predisposes him to commit sexually violent acts. The judge cited his re-offending after his first conviction and treatment. She found that appellant is highly likely to re-offend if not confined.
On appeal, appellant argues:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.S. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.
THE TRIAL COURT ERRONEOUSLY RELIED UPON HEARSAY DOCUMENTS AND THE TESTIMONY OF A NON-TREATING PSYCHOLOGIST AND PSYCHIATRIST IN FINDING J.S. A SEXUALLY VIOLENT PREDATOR (Not Raised Below).
Our scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion," In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We perceive of no such abuse here.
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(b).
[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). See also In re Civil Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div. 2007); In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div. 2007), certif. denied, 192 N.J. 296 (2007); In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007).]
The trial judge must address committee's "present serious difficulty with control over [his or her] dangerous sexual behavior," 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 R.Z.B., supra, 392 N.J. Super. at 35; In re Commitment of P.Z.H., 377 N.J. Super. 458, 465-66 (App. Div. 2005); 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 made clear, precise and discrete findings as to each element required by the act. She accepted the proofs presented through the testimony of the two experts including Dr. Friedman, discounting appellant's refusal to be interviewed by the doctor as the doctor was able to discern from the records and reports sufficient information to support his conclusion. The judge's decision was well-supported by the record.
Finally, we reject appellant's argument that the judge should not have relied on "hearsay documents" and testimony of a non-treating psychiatrist and psychologist. We have previously rejected this and similar arguments and perceive of no reason to alter our prior view of the subject. See T.J.N., supra, 390 N.J. Super. at 224; In re the Civil Commitment of A.H.B., 386 N.J. Super. 16, 19 (App. Div.), certif. denied, 188 N.J. 492 (2006); In re the Commitment of A.E.F., 377 N.J. Super. 473, 492-93 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re the Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005); In re the Commitment of A.X.D., 370 N.J. Super. 198, 201-03 (App. Div. 2004; J.H.M., supra, 367 N.J. Super. at 612-13.
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