On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-371-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
B.S.M. appeals from an order entered on August 23, 2010, which continued his commitment to the Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
A criminal defendant convicted of a predicate offense to the SVPA may be subject to involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).
To warrant commitment, or the continuation of commitment, the State must prove 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); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The State met its burden here.
The record reveals that B.S.M. has committed several "sexually violent offenses." N.J.S.A. 30:4-27.26. In 1999, B.S.M. pled guilty to three counts of second-degree kidnapping and one count of third-degree aggravated criminal sexual contact. B.S.M. is now forty-four years of age. These offenses arose out of B.S.M. posing as a police officer to lure women into his van and one incident where he posed as a doctor to conduct a pregnancy examination.
The State first petitioned for B.S.M.'s civil commitment on May 5, 2004 and he was committed on May 12, 2004. Review hearings resulted in orders that have continued commitment.
B.S.M. has appealed several of these opinions; we affirmed each by way of unpublished opinions. See In re Commitment of B.S.M., No. A-7071-03 (App. Div. April 6, 2006); See In re Commitment of B.S.M., No. A-6498-05 (App. Div. April 4, 2007), certif. denied, 192 N.J. 71 (2007); In re Commitment of B.S.M., No. A-1574-07 (App. Div. June 25, 2008). Another review hearing was conducted on August 9 and August 23, 2010, which resulted in the order continuing commitment now before us. B.S.M. argues that the judge's findings were against the weight of the evidence or insufficient to meet the clear and convincing standard. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm with only the following brief comments.
At the hearing, the State presented the testimony of Dr. Shawn McCall and Dr. Howard Gilman. Dr. McCall diagnosed B.S.M. with paraphilia NOS for non-consensual sexual activity and narcissistic personality disorder with antisocial features. He testified that it was significant that B.S.M. commits his offenses in "clusters" because he is able to commit several offenses before being apprehended. Dr. McCall noted B.S.M. has made progress but concluded that B.S.M. must remain in treatment since this was the first year he has tried "to make lasting personal changes." Dr. Gilman believed it was important that B.S.M. denied posing as a police officer and doctor because it meant he denied that part of his sexual offending ever occurred. Dr. Gilman agreed with Dr. McCall's diagnosis and concluded that B.S.M.'s risk for reoffense remained "high."
B.S.M. called no witnesses and did not testify on his own behalf. After hearing the argument of counsel, the judge rendered a thorough oral decision. In his decision, the judge found the State's witness to be credible. He found, as a result, by clear and convincing evidence, that the State proved B.S.M. is a sexually violent predator as evidenced by his convictions for sexual offenses; that he has "an abnormality and a personality disorder, mainly paraphilia and narcissistic personality disorder," as diagnosed by Dr. Gilman and Dr. McCall, which causes him "serious difficulty in controlling his sexually violent behavior;" and that according to Dr. Gilman's testimony B.S.M. is "highly likely . . . [to] reoffend in the reasonably foreseeable future."
Our standard of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no abuse of discretion and conclude that: all the judge's findings are supported by testimony the judge was entitled to credit; these findings are entitled to our deference; and the judge did not ...