On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-210-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
J.E.D. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from an order of June 27, 2008, that continues his commitment after the annual review required by N.J.S.A. 30:4- 27.35. We affirm substantially for the reasons stated by Judge Serena Perretti in her oral opinion of June 27, 2008.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 127, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).
J.E.D. was temporarily committed on November 9, 2001. The predicate offense that resulted in his temporary commitment stemmed from his conviction, following the entry of guilty pleas, to four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). He was sentenced to concurrent seven-year terms of custodial confinement at the Adult Diagnostic Treatment Center (ADTC). Shortly before completing his sentence at ADTC, the State moved for his temporary civil commitment because his convictions were the result of the commission of sexually violent offenses as defined under the SVPA. A final judgment declaring that he is a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment was entered on March 26, 2002. Orders continuing his commitment were entered on September 17, 2002, June 24, 2003, October 13, 2004, April 19, 2005, and January 8, 2007. J.E.D. appealed the June 24, 2003, April 19, 2005, and January 8, 2007 orders, and all of these orders were affirmed on appeal in unpublished opinions issued by this court. In re Civil Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004), No. A-4425-04T (App. Div. December 21, 2005) and No. A-2692-06T2 (App. Div. 2007).
The hearing that preceded entry of the January 27, 2008 order under appeal was held the same day. Dr. Nicole Paolillo, psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified for the State. No witnesses testified on behalf of J.E.D. The parties stipulated to the qualifications of Drs. Paolillo and Voskanian, and their respective reports were admitted into evidence without objection.
Dr. Paolillo is a member of the Treatment Progress Review Committee (TPRC), which she described as consisting of "a panel of doctoral level psychologists who review residents annually in regard to their knowledge in treatment, how they have been performing, and also through a meeting with the treatment providers." She explained that the TPRC in turn makes a recommendation regarding phase levels to which a committee should be admitted. She acknowledged that her committee considers information contained in evaluative reports prepared by other experts to gain insight into their respective perspectives but that her committee reaches its own opinions.
The primary basis for Dr. Paolillo's testimony was the TPRC report dated March 19, 2008. She testified that J.E.D., during the most recent review period, had been in Phase Two, which is the lower range of the STU five-phase treatment program. The residence treatment team had, on three prior occasions, recommended that J.E.D. be promoted to Phase Three, but the TPRC did not agree that promotion on those occasions was appropriate. However, by June 2008, when the TPRC interviewed J.E.D., they found him noticeably less impulsive. Dr. Paolillo testified that J.E.D. had been placed in a "modified activities program" (MAP) on three occasions during the review period. Two placements occurred because of J.E.D.'s sexual activity in the unit and the most recent placement in January 2008 followed the discovery of his possession of pornographic DVDs. J.E.D., in group interaction, acknowledged that he should not have been in possession of these materials. However, J.E.D. had these materials in his possession for approximately four months before they were discovered, leading Dr. Paolillo to opine that this conduct reflected sneakiness. She indicated that ...