On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-158-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
R.R., who is now forty 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 4, 2008 continuing his commitment to the STU following a ninth review hearing. On appeal, R.R. argues the court erred in crediting the testimony of the State's witnesses and in finding the State met its burden with clear and convincing evidence that he continues to have serious difficulty controlling his sexually violent behavior. More particularly, R.R. submits the court erroneously ceased his furlough treatment program based on prior sexual behavior in the STU.*fn1 Based on our review of the record we are not persuaded by appellant's arguments 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 1, 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 4, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. R.R. was initially committed to the STU by an order entered on July 23, 2001. Review hearings were held from 2002 through 2007, in which judgments of continued commitment were entered, none of which were appealed.*fn2 Following the last evidentiary review hearings conducted on April 1, July 11, July 15, July 23, and August 1, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
R.R. was arrested for the predicate offense on October 11, 1989, when he was twenty-one, for multiple counts of aggravated sexual assault, sexual assault, criminal sexual contact, and endangering the welfare of a child. On March 15, 1990, he pled guilty to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), four counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and was sentenced to twenty years' imprisonment with a ten-year period of parole ineligibility to be served at the Adult Diagnostic and Treatment Center at Avenel (ADTC). The charges arose after an investigation by the Eatontown Police revealed R.R. had sexually assaulted numerous teenage boys over a three-year period. R.R. initiated the offense by befriending the young boys, all of whom lived in his neighborhood. The friendships led to physical wrestling with the victims, leading next to physical touching in the boys' private areas. R.R. would then gauge whether the victims were resistant to his advances, interpreting their silence as license to progress with further sexual behavior. All tolled, R.R. performed oral and anal sex upon, and had oral and anal sex performed on him by twelve different victims, whose ages during the time of the offenses ranged from nine to sixteen. R.R. was also convicted in 1989 for receiving stolen property and possession of a handgun, for which he was sentenced to two years' probation, after he was already in custody for the predicate offense. While in prison, R.R. continued to act out in a sexual manner, often with young inmates of a somewhat diminished capacity, exploiting them using the same methods used on his prior victims. R.R. continued his activities, despite being told to cease any and all sexual activities.
R.R. was evaluated while at the ADTC and diagnosed in 2001 with pedophilia, males, non-exclusive; paraphilia NOS; polysubstance abuse; and borderline intellectual functioning and rule out personality disorder. Prior to his release, the State filed a petition for civil commitment and he was ...