April 21, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF J.E.D., SVP-210-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-210-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 13, 2011
Before Judges Fisher and Fasciale.
J.E.D. appeals from an order entered on August 19, 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 J.E.D. was convicted of four counts of second-degree sexual assault, following the entry of guilty pleas. N.J.S.A. 2C:14-2(b). He is now thirty-seven years of age.
The State first petitioned for and obtained J.E.D.'s civil commitment on November 9, 2001. Review hearings resulted in orders that have continued commitment. J.E.D. has appealed several of these orders; we affirmed each by way of unpublished opinions. See In re Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004); In re Commitment of J.E.D., No. A-4425-04 (App. Div. December 21, 2005); In re Commitment of J.E.D., No. A-2692-06 (App. Div. May 31, 2007); In re Commitment of J.E.D., No. A-0053-08 (App. Div. January 2, 2009).
Another review hearing was conducted on August 4 and 18, 2010, which resulted in the order continuing commitment now before us. J.E.D. 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 this argument 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. Pogos Voskanian and Dr. Nicole Paolillo. Both Dr. Voskanian and Dr. Paolillo diagnosed J.E.D. with pedophilia and personality disorders. Dr. Voskanian explained that J.E.D. is at a high risk to reoffend; that J.E.D. is in the early stages of treatment; and that he is still impulsive. Dr. Paolillo found J.E.D. to be at a low to moderate risk to reoffend but recommended that he remain committed because he had not yet consistently engaged in treatment. Because treatment is "an empirically-based mitigating risk factor" Dr. Paolillo concluded J.E.D. is not yet "a viable discharge candidate." J.E.D. called Dr. Cristopher Lorah on his behalf. Dr. Lorah diagnosed J.E.D. with pedophilia and personality disorders; found that J.E.D. was at a low to moderate risk of reoffense; and concluded J.E.D. did not meet the criteria for commitment as a sexually violent predator.
After hearing the argument of counsel, the judge rendered a thorough oral decision. In his decision, the judge did not find Dr. Lorah's testimony to be credible. The judge explained that Dr. Lorah failed to "directly answer questions," tried to give "an answer that is positive towards [J.E.D.]," and "minimized the problems that [J.E.D.] still has in terms of progressing in treatment and in mitigating his risk." The judge found the State's witnesses to be credible. He found, as a result, by clear and convincing evidence, that the State proved J.E.D. is a sexually violent predator as evidenced by his convictions for sexual offenses; that he continues to suffer from a "personality disorder," as diagnosed by Dr. Voskanian and Dr. Paolillo; and that J.E.D. is "highly likely [to] not control his sexual behavior [and] that he will reoffend."
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 J.E.D. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge James F. Mulvihill in his oral decision of August 18, 2010.
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