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In the Matter of the Civil

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 29, 2011

IN THE MATTER OF THE CIVIL COMMITMENT OF G.M., SVP #196-01.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 196-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 13, 2011

Before Judges Fisher and Fasciale.

G.M. appeals from an order entered on July 6, 2010, which continued his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

A criminal defendant, who has been convicted of a predicate offense to the SVPA, may be subject to an 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 of an individual or the continuation of a prior 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). In that setting, 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 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 G.M. is now forty-nine years old. G.M. has had a considerable criminal history. In the 1980's, he was convicted of various non-sexual offenses. G.M.'s sexual offense history began in 1989, when he was arrested for two sexual assaults, which were later dismissed. He was arrested in 1992 for sex offenses involving two girls, aged three and one. On December 9, 1993, G.M. pled guilty to third-degree child abuse and was sentenced to a three-year prison term. In 1997, G.M. entered a guilty plea to second-degree sexual assault, for which he was sentenced to a five-year term to be served at the Adult Diagnostic and Treatment Center, and to community supervision for life. The victim was G.M.'s eight-year old daughter.

The State first petitioned for and obtained G.M.'s commitment in 2001. G.M. appealed from a commitment order entered after a review hearing on March 14, 2003; that appeal was later dismissed. G.M. also appealed an order entered on July 13, 2009, which continued his commitment. At that time, the court considered the sufficiency of the evidence adduced at a hearing that revealed G.M. had been diagnosed with pedophilia, alcohol dependence and personality disorder not otherwise specified with anti-social features; the court also heard evidence of a provisional diagnosis of sexual sadism based on the level of violence and threats that accompanied the predicate offense committed against G.M.'s daughter. In addition, the evidence revealed that G.M. had refused treatment. Judge Mulvihill rendered an oral decision in which he explained there was clear and convincing evidence that G.M. "is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment." In re Commitment of G.M., No. A-0797-09 (App. Div. Feb. 9, 2010) (slip op. at 8). We affirmed for the reasons expressed by Judge Mulvihill in his oral decision. Ibid.

The present appeal concerns the entry of an order on July 6, 2010, which continued G.M.'s commitment. In this appeal, G.M. argues that the judge's findings were against the weight of the evidence. We disagree.

At the review hearing, the judge heard the testimony of only one witness, the State's expert, Dr. Maryanne DeSantis. She testified that she had attempted to interview G.M. for purposes of the hearing but he refused to speak. Dr. DeSantis also explained that G.M. did not often meet with evaluators and refused to partake in group sessions. In addition, the evidence revealed that G.M. refused to attend substance abuse treatment despite his alcohol dependence. Dr. DeSantis testified, as others had in the past, that G.M. suffers from pedophilia and an antisocial personality disorder, as well as alcohol dependence, and that he had not benefited from treatment -- indeed, he had refused treatment -- nor had he taken full responsibility for his crimes. As a result, Dr. DeSantis opined that G.M. was highly likely to reoffend if his confinement did not continue.

At the conclusion of the hearing, at which time G.M. did not testify and did not call any witnesses, Judge Mulvihill rendered a thorough oral decision in which he found that there was clear and convincing evidence that G.M. "continues to be a threat to the health and safety of others" because it was "highly likely that he will not control his sexually violent behavior . . . and highly likely he'll reoffend."

In considering the arguments posed in this appeal, our scope 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 Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no reason to intervene. The record more than adequately supports the judge's determination that G.M. suffers from mental abnormalities that predispose him to commit sexually violent acts, that he has serious difficulty controlling his behavior, and that he is highly likely to reoffend.

Affirmed.

20110429

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