On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-82-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
E.Z.V. 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 February 8, 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 February 8, 2008.
E.Z.V.'s first reported sexual offense occurred in 1992, when he sexually abused his five-year-old sister. He was charged with sexual assault, N.J.S.A. 2C:14-2(b). The charge was not resolved until three years later because E.Z.V. failed to appear in court during one of the pretrial proceedings, resulting in the issuance of a bench warrant. He was apprehended in 1993. At the time of his arrest, he admitted that since 1990, in addition to his five-year-old sister, he had sexually assaulted two younger siblings, as well as two other children in Massachusetts, a seven-year old and an eleven-year old, who was a friend of his family. Moreover, he admitted that he had sexual fantasies about his then sixty-seven-year-old grandmother and that he had watched his mother while she was in the shower. While awaiting final disposition of the charge against him, E.Z.V. was sent to KidsPeace, a residential program for juvenile sex offenders.
On June 22, 1995, E.Z.V. pled guilty to an amended charge of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(a), a sexually violent offense under the SVPA. He was adjudicated a delinquent and sentenced to eighteen months probation and ordered to complete the residential treatment program at KidsPeace. Reports of his treatment at KidsPeace indicated that E.Z.V.'s behavior worsened. An April 1997 report disclosed that he had been involved in inappropriate sexual contact with other residents at KidsPeace and that he showed little remorse for his behavior. Then, in August 1997, it was reported that during an outing at a public school, he was in close proximity to young children to whom he offered candy and about whom he later admitted having inappropriate sexual fantasies.
E.Z.V. was transferred to Ancora Psychiatric Hospital (Ancora) in December 1997, where he remained on a voluntary status until May of 2000. During his admission at Ancora, he was twice placed on conditional release and twice had to be re- hospitalized due to inappropriate behavior that included having thoughts of wanting to strangle his girlfriend, drinking, being non-compliant with medication, and also being found in possession of a starter pistol.
On May 23, 2000, the State filed a petition for civil commitment under the SVPA. The next day, the court entered an order temporarily committing E.Z.V. to the STU. A final judgment involuntarily committing E.Z.V. to the STU was entered on September 11, 2000. Orders continuing this commitment were subsequently entered March 14, 2001, August 14, 2001, February 4, 2002, January 28, 2003, and August 5, 2003. E.Z.V. appealed the August 5 order and we affirmed the order continuing his involuntary commitment. In re Civil Commitment of E.Z.V., No. A-525-03T2 (App. Div. January 3, 2005). Subsequent reviews resulted in further orders dated February 15, 2006 and February 8, 2008, which continued his commitment. The February 8 order is the subject of the present appeal.
On appeal, E.Z.V. contends that the trial court improperly weighed the evidence presented before it, did not properly take into account E.Z.V.'s low risk to reoffend, and erred in finding that the State met its burden of proving, by clear and convincing evidence, that he is likely to reoffend unless the STU commitment is continued.
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, 132, aff'd, 173 N.J. 134 (2002); see 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 re-offend" 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); see also 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; see also 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 extremely narrow. V.A., supra, 357 N.J. Super. at 63 (citing State v. Fields, 77 N.J. 282, 311 (1978)). 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 ...