On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-393-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
F.Z.S. 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 July 17, 2008, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm substantially for the reasons outlined in Judge Serena Perretti's comprehensive oral opinion of July 17, 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, 132, 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 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); 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 also 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 extremely 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). We add the following comments.
On April 6, 2005, the State filed a petition for the involuntary civil commitment of F.Z.S. pursuant to the SPVA. At that time, the State also sought his temporary commitment to the STU. The predicate offenses for which the temporary commitment order was sought stemmed from his February 12, 2002 conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(b); second-degree sexual assault, N.J.S.A. 2C:14-2(b); fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and, fourth-degree child neglect, N.J.S.A. 9:6-3. He was sentenced to an eighteen-year custodial term with a nine-year period of parole ineligibility at the Adult Diagnostic Treatment Center (ADTC). His conviction was reversed on appeal, resulting in his guilty plea on January 27, 2005, to an accusation charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and he was sentenced to the New Jersey State Prison for five years. F.Z.S. was previously convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), that resulted in a seven-year custodial sentence to the New Jersey State Prison.
On April 7, 2005, the court entered an order temporarily committing F.Z.S. to the STU and, on August 23, 2005, following a hearing, the court entered judgment declaring that F.Z.S. was a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment. On appeal, we affirmed the court's decision in an unpublished opinion. In re the Civil Commitment of F.Z.S., No. A-0625-05T2 (App. Div. December 15, 2006). Orders continuing his commitment were entered on March 23, 2007 and July 17, 2008. We affirmed the March 23 order in an unpublished opinion dated January 14, 2008. In re the Civil Commitment of N.H.Y., Docket No. A-4611-06T2 (App. Div. January 14, 2008).
The hearing that preceded entry of the July 17, 2008 order under appeal was held the same day. One witness, Dr. Sarah Gleacher, a psychiatrist, appeared and testified on behalf of the State. Defense counsel objected to her testimony, arguing that she had limited qualifications in terms of her work prior to rendering her opinion with respect to F.Z.S. The court, citing Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed. 2d 1090 (1983), rejected this argument, specifically finding that Dr. Gleacher is licensed to practice psychiatry in two states, board eligible in forensic psychiatry, and "had had some experience in reporting for purposes of court review on psychiatric condition of patients."
Dr. Gleacher testified that she attempted to interview F.Z.S. but that when he was brought to the interview room, "he just vigorously shook his head and just sort of hands sideways and left the room." She indicated that the fact that he would not permit an interview did not hinder her ability to reach an opinion because there was ample documentation both in the form of prior examinations by psychologists and psychiatrists. There are treatment records from his time here [at STU]. There are records from his--there are police records from his arrest in 1984 and then again in 1999. So, there's quite a bit of documentation available to review in--in order to form an opinion.
Dr. Gleacher diagnosed F.Z.S. as suffering from pedophilia and alcohol dependent under Axis I. She testified that the pedophilia manifests itself through strong sexual urges toward prepubescent females and that the condition does not spontaneously remit. Rather, Dr. Gleacher explained that the condition is addressed through treatment designed to help the pedophile to take control of acting out on urges. In her opinion, F.Z.S. had not had enough treatment for his ...