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In the Matter of the Civil Commitment of M.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 1, 2011

IN THE MATTER OF THE CIVIL COMMITMENT OF M.M.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-494-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SVP-494-08.

Submitted February 1, 2011 - Decided

Before Judges Graves and Waugh.

M.M. appeals from a judgment dated April 28, 2009, committing him to the Special Treatment Unit under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."

N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows: 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. . . . [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 reoffend.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

The judgment that M.M. appeals from was entered following a hearing on April 24, 2009. At the hearing, the State presented testimony from Dr. Pogos Voskanian, a psychiatrist, and Dr. Brian Friedman, a psychologist. M.M. did not testify or call any witnesses, and he did not present any evidence. Dr. Friedman's testimony was consistent with his forensic evaluation dated January 4, 2009, which included the following findings:

[M.M.] is a 54-year-old, single male who was most recently convicted of raping two adult females. He has a prior history of sexually assaulting a pre-pubescent girl and being charged with another sexual crime that was ultimately dismissed. He also impregnated the adolescent cousin of the mother of four of his children. In sum, [M.M.] is a sexually indiscriminate man who will satisfy his sexual urges with whoever is available without regard to age or consent. [M.M.] also has a prior history of property crimes and non-sexual violent crimes, and he is an individual who has lived a generally criminal lifestyle for many years.

In formulating this case, the most likely primary explanation for [M.M.'s] sexually exploitive behavior is his psychopathic personality organization. [M.M.] has lived his life violating the rights of others, focusing exclusively on his own needs, and treating "females" (his words) as objects to meet his own desires. He shows no genuine remorse for his criminal sexual behavior, and instead appears quite proud of his sexual exploits. [M.M.] may suffer from a diagnosable sexual disorder (Paraphilia NOS, non-consent), but in the end this diagnostic question is irrelevant at this point. He takes from others what he wants when he wants, and what he sometimes wants is sexual gratification from vulnerable women/girls. [M.M.] has also made it clear that he plans to return to substance use, and substance use is intimately connected to his sexual offending cycle. Actuarial assessment suggests that [M.M.] is a high risk to sexually recidivate, and there are no compelling factors to question this estimate of risk. Instead, there are additional factors that support actuarial estimates of high risk. [M.M.] is an untreated sexual offender who has committed highly impactful sexual crimes, and any future crimes are likely to be highly impactful as well. This opinion is based on [M.M.'s] documented prior sexual crimes, as well as his personality makeup.

[M.M.] was found to suffer from five psychiatric conditions, one of which qualifies as a mental abnormality as defined by New Jersey's SVPA. Specifically, this examiner came to the opinion, within a reasonable degree of psychological certainty, that [M.M.] suffers from Antisocial Personality Disorder, which, for [M.M.], is an acquired or congenital condition affecting his emotional, volitional, and behavioral capacity that predisposes him to commit sexually violent acts, as defined by New Jersey's SVP Statute.

Based on the reviewed records and clinical interview, and within a reasonable degree of psychological certainty, in my opinion [M.M.] is highly likely to engage in future acts of deviant sexual behavior as defined by the SVP [S]tatute if released into the community at this time.

Dr. Voskanian provided similar testimony. He diagnosed M.M. with paraphilia NOS, polysubstance dependence, and antisocial personality disorder, and Dr. Voskanian agreed there was a high risk that M.M. would continue to engage in acts of sexual violence if he was not committed for treatment. Based on the testimony provided by Drs. Voskanian and Friedman, the trial court determined that M.M. qualified for civil commitment under the SVPA. On appeal, M.M. presents the following arguments:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.M. IS A SEXUALLY VIOLENT PREDATOR AND AT PRESENT THE RISK OF RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY COMMITMENT.

POINT II

M.M. AND OTHERS SIMILARLY SITUATED SHOULD BE ALLOWED TO ENTER A PROGRAM INVOLVING NOT ONLY THERAPY BUT WHICH WOULD ALSO INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

From our review of the record and applicable law, we have concluded that these arguments are clearly without merit. R. 2:11-3(e)(1)(E). We add only the following comments. The scope of appellate review of a trial court's decision in a commitment proceeding is "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case."

State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless "the record reveals a clear mistake in the exercise of the reviewing judge's broad discretion." Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record" to determine whether the trial court's findings were clearly erroneous. In re D.C., 146 N.J. 31, 58-59 (1996).

In the present matter, the trial judge found, by clear and convincing evidence, that M.M. is a sexually violent predator who is likely to reoffend if not committed for treatment and those findings are amply supported by sufficient credible evidence. Accordingly, we find no legal error or abuse of discretion by the court, and we affirm substantially for the reasons expressed by Judge Philip Freedman in his oral decision on April 28, 2009.

Affirmed.

20110301

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