On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-440-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
I.O. appeals from an order entered on March 3, 2010, continuing his 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 reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the 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.
The predicate offenses for which I.O. was committed to the STU arose out of his 1992 sexual assault upon an eleven-year-old girl. During this incident, I.O., who had been living with the victim's family, kissed and fondled the victim on her buttocks. On another occasion, I.O. exposed himself to the victim and her friends. At the time he committed these offenses, I.O. was out on bail in connection with pending charges for two counts of sexual assault, criminal sexual contact, and aggravated sexual assault committed upon a seventeen-year-old and a six-year-old in 1991. Following his conviction for the 1991 incidents, he received a seventeen-year aggregate sentence. The sentence imposed in connection with the 1992 incident was ordered to be served concurrent with the 1991 incidents, and I.O. was committed to the Adult Diagnostic Treatment Center (ADTC) where he had been ordered to serve his sentence. At the time he was committed to the STU, he had been terminated from the ADTC and transferred to the South Woods State Prison.
At his 2010 hearing, which appears to have been his first hearing following his commitment to the STU, the State presented testimony from Dr. Marta Scott, a psychiatrist, and Dr. Nicole Paolillo, a psychologist. Defendant did not testify or produce any witnesses. Both of these experts diagnosed I.O. as suffering from pedophilia, sexually attracted to females, no exclusive type, paraphilia nos (not otherwise specified), and personality disorder NOS with antisocial traits. They also diagnosed substance abuse.
Dr. Scott opined that I.O. continues to suffer a mental abnormality that affects his volitional capacity to where he has difficulty controlling his dangerous sexual behavior and predisposes him to committing future acts of sexual violence. Dr. Paolillo, a member of the Treatment Progress Review Committee (TPRC), testified that I.O. was in Phase II out of the four phases of treatment and that although he has shown improvement, he is not ready for the therapeutic community because of his "attitude, cognitive rigidity, and victim of the system preoccupation."
The trial court credited the testimony of the State's witnesses and found that the proofs established, by clear and convincing evidence, I.O. "presently has difficulty controlling [his] harmfully sexually violent behaviors. That he has not had sufficient treatment to be able to identify and control them" and therefore "remains at a high risk to reoffend . . . without further treatment."
During oral argument before this court, defense counsel urged that Dr. Scott's report was deeply flawed because of serious deficiencies in record keeping, pointing out that he relied upon a report that was one year old and that there were missing records. Dr. Scott had acknowledged at trial that some records were missing, but she indicated that she did have notes, "one for every month," and testified that she did not need the TPRC summarization from February 5, 2010 in order to render her opinion as to how I.O. was doing in ...