On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-226-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
Appellant T.J.T. appeals from the January 20, 2010 order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
On May 21, 2002, the trial court entered an order committing appellant to the STU. Following the Supreme Court's decision In re Commitment of W.Z., 173 N.J. 109 (2002), we granted appellant's motion for a remand to reconsider the matter in light of W.Z. On October 30, 2002, the trial court found appellant to be a sexually violent predator in need of continued treatment under the W.Z. standard. Defendant appealed, and we affirmed. In the Matter of the Civil Commitment of T.J.T., Docket No. A-1335-02 (App. Div. July 12, 2004). On March 1, 2005, the Supreme Court denied certification. 183 N.J. 213 (2005). On July 14, 2005, and May 18, 2007, the trial court conducted review hearings on appellant's status at the STU and determined on each occasion that he continued to be a sexually violent predator in need of treatment. Defendant appealed each order. We affirmed, and the Supreme Court denied certification in each case. In re Civil Commitment of T.J.T., Docket No. A-6138-04 (App. Div. June 5, 2006), certif. denied, 188 N.J. 354 (2006); In re Civil Commitment of T.J.T., Docket No. A-5003-06 (App. Div. February 6, 2008), certif. denied, 195 N.J. 523 (2008).
The trial court next conducted a review hearing on January 7, 2010. On January 20, 2010, the court entered an order supported by an oral decision determining that appellant is a sexually violent predator in need of continued treatment to the STU. It is from this order that appellant now appeals. By agreement of the parties, the appeal is to be determined on the record and supplemented by oral argument, but without briefs.
On appeal, appellant argues that the trial court's decision, finding him a sexually violent predator, is not adequately supported by clear and convincing evidence in the record. Appellant also contends that the trial court erred by failing to require the State to produce non-testifying experts whose opinions were relied upon by Dr. Roger Harris, a psychiatrist, and Dr. Doreen B. Stanzione, a psychologist, at the review hearing, citing State v. Clawans, 38 N.J. 162 (1962).
The SVPA "provides for the involuntary commitment of any person who requires 'continued involuntary commitment as a sexually violent predator.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 570 (quoting N.J.S.A. 30:4-27.32(a)), cert. denied, ___ U.S. ___, 130 S.Ct. 509, 175 L.Ed. 2d 361 (2009). The primary purpose of the SVPA is "to protect other members of society from the danger posed by sexually violent predators." Id. at 571. An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers 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(b).
"To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." W.Z., supra, 173 N.J. at 132. "[T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will re[-]offend." Ibid. The court must be satisfied by clear and convincing evidence that such is the case at the time of the hearing. J.M.B., supra, 197 N.J. at 571. Simply stated, "'[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
Because the statement of facts and procedural history leading to appellant's initial commitment were fully set forth in our prior unpublished opinions, supra, it is unnecessary to discuss them here. During the review hearing that is the subject of this appeal, the State presented testimony and reports from Dr. Harris and Dr. Doreen B. Stanzione, the latter of whom is assigned to the Treatment Progress Review Committee (TPRC) at the STU.
Dr. Harris interviewed appellant on December 10, 2009. The doctor diagnosed appellant as suffering from paraphilia NOS*fn1 (coercion), not exclusive with sadistic traits; alcohol dependence in remission in an institutional setting; marijuana abuse in remission in an institutional setting; and on Axis II, with an antisocial personality disorder. The doctor opined that appellant "is essentially an untreated man who has engaged in sexual offenses. There is little difference in this man from the man who committed the sexual offenses back in 1992. Time has passed, but little else has changed." The doctor stated that appellant "remains a high risk to sexually reoffend and continues to meet the criteria for civil commitment under the NJ SVP statute." Dr. Stanzione diagnosed appellant as suffering from paraphilia NOS, non-consent; provisional sexual sadism; provisional pedophilia sexually attracted to girls, non-exclusive type; alcohol dependence in institutional remission, marijuana abuse in institutional remission; and on Axis II, with personality disorder NOS with antisocial features. She testified that it was the TPRC's recommendation that appellant remain in Phase I of treatment.
Our review of a trial court's decision in a commitment hearing is a narrow one. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). A judge is free to accept or reject, in total or in part, an expert's testimony. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). "A judge may assign to expert testimony only the weight to which it is entitled given its foundation." In re Civil Commitment of M.M., 384 N.J. Super. 313, 335 (App. Div. 2006). We accord the "utmost deference" to the trial court's determinations, and can only modify the same ...