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In the Matter of the Civil Commitment of E.S.T.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2011

IN THE MATTER OF THE CIVIL COMMITMENT OF E.S.T., SVP-249-02.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-249-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 13, 2010

Before Judges Fisher and Fasciale.

E.S.T. appeals from an order entered on August 3, 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 E.S.T. has committed several violent sexual offenses pursuant to N.J.S.A. 30:4-27.26. In each incident, he broke into a home and committed a sexual assault. He is now forty-eight years of age.

The State first petitioned for E.S.T.'s civil commitment on June 4, 2002 and he was committed on June 12, 2002. E.S.T. appealed his initial commitment and we reversed and remanded for a new commitment hearing because the State's expert's impermissibly relied on the findings and opinions of other experts that E.S.T. did not have the opportunity to confront. See In re Commitment of E.S.T., 371 N.J. Super. 562, 564 (App. Div. 2004). Subsequent review hearings resulted in orders that have continued commitment. E.S.T. has appealed each of these orders and we affirmed each by way of unpublished opinions. See In re Commitment of E.S.T., No. A-3902-04 (App. Div. April 2, 2007); In re Commitment of E.S.T., No. A-6454-08 (App. Div. February 23, 2010).

Another review hearing was conducted on August 3, 2010, which resulted in the order continuing commitment now before us. E.S.T. argues that the judge's findings were against the weight of the evidence or insufficient to meet the clear and convincing standard and that he is not "highly likely" to reoffend. 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. Maryanne DeSantis and Dr. Christine Zavalis. Dr. DeSantis diagnosed E.S.T. with provisional paraphilia, poly-susbtance dependence, and antisocial personality disorder. She concluded these disorders cause E.S.T. to have a serious difficulty in controlling his sexually violent behavior and that he is highly likely to reoffend. Dr. Zavalis also diagnosed E.S.T. with provisional paraphilia, polysubstance dependence, antisocial personality disorder and borderline intellectual functioning with a provisional diagnosis of mild mental retardation.

E.S.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 E.S.T. is a sexually violent predator as evidenced by his convictions for sexual offenses; that he has "a mental abnormality and personality disorder," as diagnosed by Dr. DeSantis and Dr. Zavalis; and that E.S.T. "is still highly likely to engage in further acts of sexual violence if not confined to a secure facility and controlled care and treatment."

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 E.S.T. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge James A. Mulvihill in his oral decision of August 3, 2010.

Affirmed.

20110421

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