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In Re the Civil Commitment of M.N.A. Svp-307-03.

December 17, 2010

IN RE THE CIVIL COMMITMENT OF M.N.A. SVP-307-03.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-307-03.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 13, 2010

Before Judges Lisa and Reisner.

M.N.A., now twenty-nine years of age, appeals from Judge McLaughlin's April 28, 2010 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend if not confined to the STU. We disagree and affirm.

In addition to the predicate offense, which we will describe in the next paragraph, appellant had several juvenile sexual offenses, in which he victimized very young children. In February 1997, at age fifteen, he was charged with stalking an eight-year-old boy in a restroom, asking to see the boy's "dick." Appellant was charged with harassment, which was ultimately dismissed. In August 1997, at age sixteen, charges were brought against appellant for engaging in oral and anal sex with a minor. Appellant admitted having oral sex with his adoptive father's eight-year-old grandnephew, repeatedly abusing his six-year-old male cousin, and had sexually abusing his adoptive father's six-year-old grandniece. Based on these charges, appellant was adjudicated delinquent on February 11, 1998 for endangering the welfare of a child. He was placed in a residential sex offender program, but was discharged for touching other boys in the program. He then violated probation and was committed to the Juvenile Medium Security Facility at Bordentown. While there, appellant committed the predicate offense.

On September 9, 2000, at age nineteen, while confined at Bordentown, appellant performed oral sex on two fifteen-year-old inmates. On February 19, 2003, he pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. He was sentenced to the Adult Diagnostic and Treatment Center (ADTC) for a term of eighteen months. On March 11, 2003, just prior to his scheduled release, the State filed a petition for appellant's commitment under the SVPA. After a hearing on June 23, 2003, appellant was found eligible for SVPA commitment. A judgment was entered on that date.

A first review hearing was conducted on September 7, 2004, and appellant's commitment was continued by judgment of that date. In consolidated appellate proceedings, we affirmed the June 23, 2003 and September 7, 2004 judgments in a single opinion. In re Civil Commitment of M.N.A., Nos. A-5775-02, A-0425-04 (App. Div. January 4, 2006), certif. denied, 187 N.J. 81 (2006). A second review occurred on August 21, 2006, and appellant's commitment was again continued. We affirmed the August 21, 2006 judgment. In re Civil Commitment of M.N.A., No. A-0693-06 (App. Div. February 15, 2007), certif. denied, 192 N.J. 492 (2007). A third review occurred on August 4, 2008, and resulted in appellant's continued commitment.

The hearing that is the subject of this appeal occurred on March 1 and April 8, 2010. The State presented the testimony of Dr. Howard Gilman, a psychiatrist, and Dr. Christine Zavalis, a psychologist and member of the Treatment Progress Review Committee (TPRC).

Dr. Gilman interviewed appellant and consulted other sources, including police reports, treatment notes, and prior reports by psychologists and psychiatrists. He produced a report detailing his clinical opinion, and testified accordingly. He found that appellant was having difficulty controlling his sexual impulses, both deviant and healthy, and his temper toward the staff. These difficulties resulted in appellant repeatedly being placed in the Modified Activities Program (MAP), a program designed to respond to patients' behavioral problems. Conversely, appellant had made progress in some aspects of his treatment. For example, where, in the past, appellant had engaged in sexual contact with other patients and maintained that there was "nothing wrong with being sexually active with other consenting adults . . . at the STU," he had begun to acknowledge that he does need to follow the rules.

Dr. Gilman diagnosed appellant "as suffering from paraphilia, not otherwise specified [(NOS)], primarily attracted to adolescent and pre-adolescent boys, with a rule-out of pedophilia, sexually attracted to boys, and the diagnosis of a Narcissistic Personality Disorder." He opined that appellant was at high risk to sexually reoffend. He based this opinion on appellant's inability to control his sexual behavior, appellant's angry outbursts with staff, and appellant's history of reoffending, despite legal supervision.

Dr. Zavalis and the TRPC recommended that appellant remain in phase three of the treatment program. The TPRC produced its report and recommendations after it interviewed appellant and consulted his treatment providers, treatment records, and other reports produced over the course of appellant's incarceration and treatment. According to the TRPC, appellant had made some progress in his treatment. He recognized that his sexual behavior was inappropriate, and abstained from sexual intercourse since December, 2008, although he had engaged in some over-the-clothes genital fondling as recently as March, 2009, and kissing and hugging as recently as December, 2009.

Dr. Zavalis noted difficulty in fully evaluating appellant's progress because he spent the majority of the evaluation period on MAP status, where he was taken away from his regular treatment groups, and instead participated in groups designed to address the behavior necessitating the MAP placement. Dr. Zavalis diagnosed appellant with pedophilia (sexually attracted to males), paraphilia NOS (hebephilia, non-exclusive type, sexually attracted to males), depressive disorder NOS, impulse control disorder NOS, and personality disorder NOS (with anti-social features). She said that appellant scored a seven on the Static 99-R test, which is designed to predict the likelihood that a sex offender will reoffend. That score indicated that he was highly likely to reoffend.

Dr. Zavalis also noted that the treatment providers wanted appellant to focus on several areas of concern, including an overly sexualized view of himself as a sexual object, as evidenced by his statement that "[s]ex is what I had to offer, became my self-worth, what I was good at." The TPRC recommended that appellant continue to participate in process groups, take floors, and most importantly, ...


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