On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-229-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
R.W.R., who is now forty-three 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 October 7, 2008, continuing his commitment to the STU following an eighth review hearing. On appeal, R.W.R. contends the court inappropriately credited the testimony of the State's witnesses and the recommendation of the TPRC that he be demoted from Phase Four. More particularly, R.W.R. argues the sole basis for his demotion was because he was having a consensual adult homosexual relationship at the STU, which is an insufficient basis to infer that he would be highly likely to sexually re-offend if released.*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 October 7, 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).
R.W.R. was initially committed to the STU by an order entered on January 31, 2002. Review hearings were held on March 13, 2003, April 6, 2004, March 23, 2005, September 20, 2005, February 9, 2006, January 11, 2007, and January 30, 2008, in which judgments of continued commitment were entered. R.W.R. appealed the 2004 and 2006 orders, which we affirmed. In Re Civil Commitment of R.W.R., No. A-4595-03T2 (App. Div. Nov. 10, 2004); In Re Civil Commitment of R.W.R., No. A-3124-05T2 (App. Div. June 13, 2006). Following the last evidentiary review hearing conducted on October 7, 2008, a judgment of continued commitment was entered, which is the subject of this appeal.
The October 7, 2008 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. R.W.R. readily admits that he committed various sexual acts with four boys between the ages of eleven or twelve and sixteen and that he groomed them by gaining their trust. Moreover, he made available alcohol, marijuana and pornography in his apartment for the boys to use. Specifically, on August 7, 1998, he was convicted of two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(5), for molesting twin brothers over a three-year period, as well as burglary, theft and drug charges. He received an aggregate four-year custodial sentence, which included nine months for the sex offenses. While R.W.R. was incarcerated, two other male victims came forward claiming R.W.R. molested them. Consequently, on October 22, 1999 R.W.R. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2c(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and on February 25, 2000, he was convicted of second-degree sexual assault. He was sentenced to concurrent terms of six years at the Adult Diagnostic and Treatment Center in Avenel (ADTC), also concurrent to the term for which he was already serving. R.W.R. was transferred to the ADTC on June 27, 2000. Prior to his release, the State filed a petition for civil commitment and R.W.R. was transferred to the STU and temporarily committed by order of January 31, 2002.
At the review hearing that is the subject of this appeal, the court heard testimony on behalf of the State from Dr. Marta Scott, a psychiatrist, and Dr. Doreen Stanzione, a psychologist and member of the Treatment Progress Review Committee (TPRC), and on behalf of R.W.R. from Dr. Pius Essandoh, a clinical psychologist who treated R.W.R. at the STU, and Dr. Timothy P. Foley, a psychologist. The court also accepted into evidence Dr. Scott's report of October 2, 2008, the TPRC report of Dr. Stanzione of July 24, ...