On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-199-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
B.A., who is now fifty-nine years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of August 18, 2008 continuing his commitment to the STU following a sixth review hearing. On appeal, B.A. asserts a general challenge to the court's finding that the State met its burden with clear and convincing evidence that he continues to be a sexually violent predator in need of civil commitment. In particular, B.A. argues the court did not take into account his exemplary behavior while at the STU and his increased participation in treatment during the past year, which he contends significantly reduces his risk to re-offend.*fn1
Based on our review of the record, we are not persuaded by appellant's argument and are satisfied the trial judge's findings are amply supported by competent evidence. Accordingly, we affirm substantially for the reasons set forth by Judge Serena Perretti in her oral decision of August 18, 2008.
A person who has committed a sexually violent offense may be civilly committed only if "suffer[ing] 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. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.
Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and order of continued commitment 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 W.Z., supra, 173 N.J. at 132-33; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an 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 [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).
The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
The August 18, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. B.A. was initially committed to the STU by an order entered on May 3, 2002. B.A. filed an appeal of this order, which was dismissed on February 24, 2003. (A-5299-01T3). Review hearings were held in 2003, 2004, 2005, 2006, and 2007, in which judgments of continued commitment were entered, none of which were appealed. Following the last evidentiary review hearings conducted on August 12 and August 18, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
B.A. has a long history of sexual and criminal offenses dating back to 1972. The predicate offense for B.A.'s commitment involved a charge of four counts of sexual assault and four counts of endangering the welfare of a child, occurring on June 29, 1982. Four males, ages thirteen to sixteen, reported to police that B.A. and a man named "Vito" whom they met in a park showed them pictures of naked boys. B.A. then solicited them to make pornographic movies and performed oral sex on them, bribing them with money and promises of entertainment. On August 6, 1982, B.A. pled guilty to two counts of sexual assault, N.J.S.A. 2C:14-2c(4), and was ...