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In re Civil Commitment of S.B.R.

December 17, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF S.B.R. SVP-243-02


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-243-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2008

Before Reisner and Sapp-Peterson.

S.B.R. appeals from a June 26, 2007 order continuing his commitment to the Special Treatment Unit (STU), with a future review date of June 4, 2008, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.*fn1 We affirm, substantially for the reasons stated by Judge Freedman in his comprehensive oral opinion placed on the record on June 26, 2007.

I.

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 the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.

II.

S.B.R. was convicted of two sexual offenses. In 1989, when S.B.R. was twelve, he committed aggravated sexual assault on an eight-year-old victim; he received probation. In 1999, S.B.R. pled guilty to sexual assault, criminal restraint and theft by deception and was sentenced to five years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The latter offense involved a violent attack on a nineteen-year-old female victim. S.B.R. was initially committed to the STU on April 4, 2003, and his commitment was continued by order of May 28, 2004. We affirmed consolidated appeals from those two orders. Civil Commitment of S.R., Docket Nos. A-4817-02 and A-0649-04 (App. Div. Nov. 1, 2006).

The hearing which gave rise to the current appeal commenced on June 4, 2007. At the beginning of the hearing, Judge Freedman ruled that the STU's business records would be admitted in evidence but that he would not consider any included complex diagnosis or other hearsay for its truth.

The State presented testimony from a psychiatrist, Dr. Stanley Kern, who had interviewed S.B.R. on January 31 and May 23, 2007. While Dr. Kern reviewed S.B.R.'s entire treatment history, he formed his own independent diagnosis. According to Dr. Kern, the fact that S.B.R. was so young when he committed his first sexual offense "shows a deeply ingrained need to act . . . [in] this fashion . . . both criminally and sexually." He also opined that S.B.R.'s lengthy history of non-sexual offenses showed "a need to act out in an antisocial fashion without regard to . . . other people's needs or ...


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