On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-452-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
Appellant C.E.G. appeals from the January 26, 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 September 7, 2007, the trial court entered an order committing appellant to the STU. Appellant appealed, and we affirmed. In re Civil Commitment of C.E.G., No. A-0823-07 (App. Div. November 12, 2009). On January 22, 2010, the court conducted a review hearing. On January 26, 2010, the court entered an order, supported by an oral decision, determining that appellant is a sexually violent predator in need of continued treatment at 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 as 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 contends that the State failed to prove that he suffers from a mental abnormality or personality disorder, causing him difficulty in controlling his sexually harmful behavior to where it is highly likely that he will re-offend.
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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[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 opinion, C.E.G., supra, it is unnecessary for us to discuss them here. During the review hearing that is the subject of this appeal, the State presented testimony from Dr. Pogos H. Voskanian, a psychiatrist. Defendant neither testified, nor presented any witnesses on his own behalf.
Dr. Voskanian testified that he attempted to interview appellant on January 6, 2010, but appellant refused the interview. The doctor reviewed appellant's STU treatment records, together with his petition for civil commitment and records from the Avenel Diagnostic Treatment Center in preparation of his report. At the hearing, Dr. Voskanian testified that he diagnosed appellant as suffering from paraphilia, NOS;*fn1 pedophilia, sexually attracted to both, non-exclusive; paraphilia, NOS (hebophilia) provisional; cannabis abuse provisional; alcohol abuse provisional; and on Axis II, with antisocial personality disorder, severe. The doctor opined that appellant has a mental abnormality and personality disorder that places him at a high risk to re-offend if not confined to a secure facility for continued controlled care and treatment. The doctor described appellant's risk to re-offend as "[u]ndiminished from the time when he was actually committing his offenses."
In addition, the State introduced into evidence, the report of Shawn McCall, a psychologist assigned to the Treatment Progress Review Committee (TPRC) at the STU. Dr. McCall diagnosed appellant as suffering from the same psychiatric conditions as Dr. Voskanian. The doctor testified that the TPRC found the main obstacle appellant is facing is his refusal of treatment. He stated that "[t]he TPRC recommends [appellant] for continued placement 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 ...