On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-337-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Fisher and Sapp-Peterson.
D.M.B. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the New Jersey Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. He appeals from an order of November 3, 2008 that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm substantially for the reasons outlined in Judge Serena Perretti's comprehensive oral opinion of November 3, 2008.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "'in a secure facility for control, care and treatment.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment, despite treatment, are required. N.J.S.A. 30:4-27.35.*fn1
An order of continued commitment under the SVPA, like an initial order, 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 G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004) (citing N.J.S.A. 30:4-27.32(a)); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div. 2004), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002). "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." Id. at 455; see also W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32.
Our review of a commitment pursuant to the SVPA is extremely narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles in accordance with the requirements of Rule 2:11-3(e)(1)(A). We add the following comments.
On September 24, 2003, the State filed a petition for the involuntary civil commitment of D.M.B. pursuant to the SPVA. At that time, the State also sought his temporary commitment to the STU. The predicate offenses for which the temporary commitment order was sought stemmed from his June 23, 1995 guilty plea to first-degree sexual assault, N.J.S.A. 2C:14-2(a)(3), and first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1. He was sentenced to 15 years on each count, to run concurrently.
On October 1, 2003, the court entered an order temporarily committing D.M.B. to the STU and, on March 8, 2004, following a hearing, the court entered judgment declaring that D.M.B. was a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment. On appeal, we affirmed the court's decision in an unpublished opinion. In re the Civil Commitment of D.M.B., No. A-3896-03T2 (App. Div. February 15, 2006). An order continuing his commitment was entered on November 3, 2008.*fn2
The hearing that preceded entry of the November 3, 2008 order under appeal was held on September 17, 2008, October 29, 2008 and November 3, 2008. Dr. Nicole Paolillo, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified for the State. The parties stipulated to both doctors' qualifications and, subject to hearsay objections, the reports of both doctors were admitted into evidence without further objections.
Dr. Paolillo testified that she is a member of the Treatment Progress Review Committee (TPRC) panel within the STU and that the TPRC met with D.M.B. to evaluate his progress on May 12, 2008 and issued a report dated July 11, 2008. She testified that the TPRC believed D.M.B. should remain in Phase Two, which is considered the introductory phase of treatment. The TPRC unanimously voted to continue his treatment in Phase Two.
Dr. Paolillo diagnosed D.M.B. as having paraphilia, not otherwise specified (NOS), and polysubstance dependence under Axis I. Dr. Paolillo also, under Axis II, diagnosed D.M.B. as having an antisocial personality disorder. The July 11, 2008 TPRC report recommends that D.M.B. increase the quality and quantity of his taking of the floor in treatment, continue to attend group meetings regularly, complete the written programmatic requirements, and present his work in group in order to progress and advance into Phase Three. In addition, Dr. Paolillo explained that D.M.B. is "not acknowledging any evidence of a deviant arousal" and is entirely ...