On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-212-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
M.D.C. appeals from an order entered on September 17, 2009, continuing his involuntary civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
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.
[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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 reoffend. [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]
The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will re-offend by clear and convincing evidence. Id. at 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
M.D.C. was initially committed to the STU by temporary order entered on November 16, 2001, and thereafter a final judgment by stipulation committing him to the STU was entered on April 11, 2002. The predicate offense for which appellant was committed to the STU arose out of his August 1993 attack upon a three-year-old during which appellant cut the victim's penis. He received a probationary disposition until age nineteen with additional conditions that included undergoing re-evaluation, participating in a formal sexual assault program, undergoing evaluation at a neurology center, and receiving psychotherapy, if appropriate, for anger management. He subsequently pled guilty to aggravated assault with a weapon and stalking in May 1995 and received an aggregate six-year custodial term. He was discharged from New Jersey State Prison in 2000 and civilly committed, pursuant to N.J.S.A. 30:4-27.1 and Rule 4:74-7, to the Ann Klein Forensic Center. In 2001, the State moved for appellant's civil commitment pursuant to the SVPA. An order temporarily committing M.D.C. to the STU was entered on November 16, 2001. A final hearing on the petition occurred on April 11, 2002, at which M.D.C. stipulated to his continued commitment. On September 23, 2003, appellant once again stipulated to his continued commitment to the STU. By order dated March 11, 2004, the court continued appellant's commitment. Appellant appealed and we issued an opinion directing his release. Upon reconsideration, we subsequently vacated our earlier decision and affirmed the trial court's order continuing M.D.C.'s commitment. In re Commitment of M.X.C., No. A-4707-03 (App. Div. December 19, 2006), certif. denied, 192 N.J. 70 (2007).
At his 2009 hearing, which is the basis of the present appeal, the State presented testimony from Dr. Roger Harris, a psychiatrist, and Dr. Jamie Canataro, a psychologist. Defense counsel stipulated to the qualifications of both doctors. Defendant did not testify or produce witnesses on his behalf.
Dr. Harris testified that because M.D.C. refused to meet with him, his report and findings were based upon his review of M.D.C.'s records that included Treatment Progress Review Committee (TPRC) reports, treatment team reports, prior clinical certificates, and treatment records from the Department of Corrections. He diagnosed appellant as suffering from antisocial personality disorder, ruling out sexual sadism, substance abuse, antisocial personality disorder with borderline traits, and a non DSM-IV diagnosis of psychopathy. He explained that "ruling out sexual sadism" . . . "means that there are very strong indications that he has sexual sadism, but the problem is that [appellant] hasn't really endorsed any of that. And since I did not get a chance to speak to him, I listed it as rule out."
Dr. Harris testified that he based his opinion that appellant suffered from antisocial personality disorder upon evidence in the record that reflected impulsivity on the part of appellant, his failure to conform to societal norms as evidenced by how he has treated people, the way he treated his cell mate, or his willingness to threaten individuals. Addressing the psychopathy disorder, Dr. Harris expressed the view that appellant's score on the Static-99*fn1 placed him in the moderate to high category to sexually re-offend. He explained that appellant's "sexual interest in terms of sadism puts him at risk, given that he appears to have a deviant arousal that puts him at risk to sexually re[-]offend." Dr. Harris further opined that appellant's "inability to self-regulate, his childhood history, his -- the fact that he offended sexually as a juvenile, his poor cognitive coping styles, all of those factors place him at a higher risk than what the Static would estimate."
Under cross-examination, Dr. Harris acknowledged that appellant had participated in and completed a number of modules, but noted that because appellant remained in Phase II, he had not made that much progress. Nor was his opinion altered by the fact that appellant denied ...