On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-529-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
The State appeals from a September 18, 2009 order of the trial court finding that the State failed to prove by clear and convincing evidence that J.C. is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The order directed his release from the Special Treatment Unit into the custody of the Division of Parole, which by law must supervise him for the rest of his life.*fn1 N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-6.11. The State also appeals from a November 10, 2009 order denying its motion for reconsideration. We initially granted the State's motion for a stay and accelerated this appeal. We now affirm.
After a convicted sex offender (offender) has served the sentence impose for his crimes and is ready to be released, the State may seek to have the offender civilly committed under the SVPA. N.J.S.A. 30:4-27.28. However, the State and Federal constitutions preclude the State from civilly confining the offender unless the State proves "by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002); Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed. 2d 856 (2002). Thus, the constitutionality of the SVPA depends on our adherence to a system that holds the State to that heavy burden of proof in every case. See W.Z., supra, 173 N.J. at 126. If the State proves its case, the offender is civilly committed to a special facility known as the Special Treatment Unit (STU). If the State does not prove its case, the offender must be released from physical confinement. However, as part of the original criminal sentence, the offender will be subjected to parole supervision for life. N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-6.11.
Each contested SVPA case is heard before a Superior Court judge who hears the witnesses testify, makes determinations as to their credibility, makes findings of fact, and decides whether the State has carried its burden of proof as a matter of fact and law. Where both sides present testimony from expert witnesses, it is the trial judge's responsibility to decide which side's experts are more convincing. Typically, in SVPA cases the State presents testimony from mental health experts employed by the STU. Unlike many cases, in this case an STU psychologist who had evaluated J.C. on behalf of the State and found that he did not meet the standard for civil commitment, testified in favor of J.C. A second psychologist, retained by the defense, likewise testified for J.C. The State presented testimony from one witness, an STU psychiatrist, whose testimony the trial judge found unconvincing.
Whether the State wins or loses at the trial level, our standard of appellate review is the same. In light of the special expertise of the SVPA judges, we owe "the utmost deference" to their decisions, and we will not disturb the trial court's determinations absent a clear abuse of discretion. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). See also In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225-26 (App. Div. 2007); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We must uphold the trial judge's findings of fact as long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). And, as with all cases in which a trial judge hears witnesses testify, we owe particular deference to the judge's decision as to whether the witnesses are credible. See State v. Locurto, 157 N.J. 463, 474 (1999). Cesare v. Cesare, 154 N.J. 394, 412 (1998).
With those legal standards in mind, we summarize the most pertinent evidence. In 2003, J.C., then age thirty-eight, was indicted for sexually assaulting J.R., a sixteen year old girl who was living with her mother and J.C. He was also indicted for attempting to sexually molest two other girls both of whom had been overnight guests visiting J.R. On September 9, 2003, he entered into a plea bargain in which he pled guilty to aggravated sexual assault on J.R. and the State dismissed the indictments concerning the other two girls. J.C. was sentenced to seven years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. After he was found to be a repetitive and compulsive sex offender, he was ordered to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) where he would undergo sex offender treatment.
Evidence in the record indicates that J.C. forced J.R. to have a sexual relationship with him over a four-year period starting when she was twelve years old. According to the victim, J.C. would slap her and pull her hair if she resisted, and he forced her to have sexual intercourse, oral sex, and on one occasion, anal sex. While J.C. initially claimed the relationship was consensual, he eventually admitted that it was not. There also appears to be no dispute that during a sleepover, he approached J.R.'s eight year old friend, pulled down her underwear and offered her money to let him perform oral sex on her. When she refused, he retreated. Similarly, on two occasions, he began sexually touching a cousin of J.R. who was sleeping over at the house, but abandoned his attempts when she told him to stop.
J.C. told at least one mental health evaluator that he had sex with two girls in Puerto Rico who were between thirteen and fourteen years old. However, he later stated that his encounter was with only one girl, whom he met in a bar, and she had appeared to be much older than fourteen. He contended that the earlier report ...