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In the Matter of the Civil Commitment of F.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2011

IN THE MATTER OF THE CIVIL COMMITMENT OF F.T., SVP-416-05.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-416-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 13, 2011

Before Judges Fisher and Fasciale.

F.T. appeals from an order entered on September 9, 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 F.T. has committed numerous offenses, some of which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. On two separate occasions he was convicted of first-degree sexual assault. He is now forty-four years of age.

The State first petitioned for F.T.'s civil commitment on December 12, 2005 and he was committed on December 15, 2005. A subsequent review hearing resulted in an order that continued commitment. F.T. appealed this order and we affirmed by way of an unpublished decision. See In re Commitment of F.T., No. A-3825-05 (App. Div. January 25), certif. denied, 199 N.J. 130 (2009).

Another review hearing was conducted on August 30, 2010, which resulted in the order continuing commitment now before us. F.T. argues that the judge's findings were against the weight of the evidence or insufficient to meet the clear and convincing standard; the court permitted the State to use hearsay as substantive evidence, since it was relied upon by their experts; the case should have been dismissed for lack of evidence; F.T. was denied due process of law when he was denied confrontation of a host of witnesses against him; the court failed to draw permissive adverse evidence when the State failed to produce a host of witnesses for trial; and the proceedings failed to provide F.T. with his constitutional right to procedural due process. 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. John Zincone*fn1 and Dr. Nicole Paolillo. Both doctors found F.T. suffered from papaphilia NOS, a mental abnormality and personal disorder, which makes it highly likely that F.T. will reoffend if not kept in a secure facility. They also diagnosed F.T. with alcohol dependence and antisocial personality disorder. Both doctors concluded that F.T. was at a high risk to reoffend if not committed.

F.T. 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 F.T. is a sexually violent predator as evidenced by his convictions for sexual offenses; that he has "an abnormality personality disorder, namely, antisocial personality disorder," as diagnosed by Dr. Zincone and Dr. Paolillo, "which affects his cognitive, emotional, and intellectual capacities" and causes F.T. "serious difficulty in controll[ing] his harmfully sexually violent behavior"; and that "it is highly likely that he would 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 abuse his discretion in continuing the commitment of F.T. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge John A. McLaughlin in his oral decision of September 9, 2010.

Affirmed.


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