On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-16-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges Lisa and Alvarez.
D.A.C. appeals from an order entered on August 6, 2007, continuing his involuntary civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.
D.A.C., who is now fifty years old, entered a guilty plea to two counts of aggravated sexual assault and one count of sexual assault on March 26, 1990. He was sentenced in accord with the plea to fifteen years at the Adult Diagnostic and Treatment Center (ADTC). When D.A.C. refused treatment, he was transferred to a prison setting. D.A.C. was first committed to the Special Treatment Unit (STU) on October 15, 1999. He has been recommitted on each of several review hearings.
The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. A court shall order an involuntary civil commitment under the SVPA when the State proves by clear and convincing evidence that a sexually violent predator requires continued confinement. N.J.S.A. 30:4-27.32(a). The standard for involuntary commitment under the SVPA is as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
A person confined under the SVPA must be afforded an annual review hearing to determine whether involuntary commitment as a sexually violent predator should continue. N.J.S.A. 30:4-27.35. The purpose of a commitment review hearing is "to decide if confinement under the SVPA and W.Z. standards is proper." In re Commitment of K.D., 357 N.J. Super. 94, 99 (App. Div. 2003). "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with the plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130.
The scope of appellate review of a trial court's SVPA commitment decision has been described as "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may be modified "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).
At D.A.C.'s commitment review hearing on August 6, 2007, the State presented one witness, Evan Feibusch, M.D., a psychiatrist. D.A.C. presented the testimony of one lay witness.
Dr. Feibusch testified that D.A.C. suffers from a mental abnormality, specifically, pedophilia and personality disorder, which predisposes him to commit acts of sexual violence. He also stated that pedophilia is a "chronic, life-long type of illness." His basis for the diagnosis was D.A.C.'s history of sexual assaults upon his step-daughter, including fellatio, beginning when she was eight or nine and continuing for several years. D.A.C. also sexually assaulted on at least one occasion a second stepdaughter who was eleven years old. ...