On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-295-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 23, 2009
Before Judges Axelrad and Espinosa.
M.H., who is currently sixty-one years of age, is a resident of the Special Treatment Unit (STU), the secure custodial facility designed 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 April 14, 2009, continuing his commitment to the STU following a third review hearing. On appeal, M.H. argues the court erred in crediting the testimony of the State's psychiatrist 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 such that it is likely he will re-offend if not confined.*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 James Mulvihill in his oral decision of April 14, 2009.
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 (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 A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); 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 April 14, 2009 order of continued commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. M.H. was initially committed to the STU by a final order entered on June 18, 2003. Review hearings resulted in orders that have continued commitment. M.H. has appealed the initial order and the order following the first review hearing; we affirmed both by way of unpublished opinions. See In re Civil Commitment of M.X.H., No. A-5780-02T2 (App. Div. March 2, 2006); In re Civil Commitment of M.H., No. 2375-06T2 (App. Div. May 29, 2007). Following the last review hearing conducted on April 14, 2009, a judgment of continued commitment was entered, which is the subject of this appeal.
Appellant has had a long history of sexually violent offenses and juvenile and adult criminal behavior, which we have detailed at length in our earlier opinions. In 1986, M.H. pled guilty to aggravated sexual assault of a thirteen-year-old boy by anal intercourse at knifepoint, which served as the predicate offense under the SVPA, N.J.S.A. 30:4-27.26.
At the review hearing that is the subject of this appeal, Dr. Sarah Gleacher, a psychiatrist, and Dr. Rosemarie Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC) testified for the State, and Dr. Jeffrey Singer, a psychologist, testified on behalf of M.H. The State's psychiatrist testified that M.H. "remains a partially treated sex offender," still in Phase 3 of five phases of treatment. His Static-99 score of nine placed him in the high-risk category to sexually re-offend. Dr. Gleacher further opined that ...