November 9, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF N.U.M., SVP-406-05.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-406-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011
Before Judges Fisher and Baxter.
N.U.M. appeals from a December 16, 2010 order, 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, arguing that the trial judge's findings were not supported by the evidence. We reject his arguments and 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 N.U.M. is now fifty years old. He has had a considerable criminal history. As we observed in our unpublished opinion in a prior appeal, defendant raped a fourteen-year old girl in 1983, and the following year, repeatedly raped another fourteen-year old girl at knifepoint, leading to his guilty plea to kidnapping and aggravated sexual assault and the imposition of a fifteen-year prison term to be served at the Adult Diagnostic and Treatment Center. See In re Commitment of N.U.M., No. A-4556-05 (App. Div. June 10, 2008) (slip op. at 3).
The State first petitioned for N.U.M.'s commitment in 2005. He appealed a commitment order entered on April 26, 2006; we affirmed. Ibid. Defendant later stipulated to his continued commitment until the hearing that led to the order now under review.
The present appeal concerns an order continuing N.U.M.'s commitment that was entered on December 16, 2010. In this appeal, N.U.M. argues that the judge's findings were against the weight of the evidence. We disagree.
At the review hearing on November 4 and 17, 2010, the judge heard the testimony of the State's experts, Dr. Roger Harris and Dr. Christine Zavalis. Dr. Harris testified he attempted to interview N.U.M. for purposes of the hearing but N.U.M. refused to speak with him. As a result, based upon his review of records of the type normally relied upon by experts in the field, as well as past discussions he had with N.U.M., Dr. Harris testified that N.U.M. suffers from a mental abnormality and a personality disorder -- "paraphilia NOS non-consent" and "rule out paraphilia NOS or ephebophilia"*fn1 -- that predispose him to engage in acts of sexual violence. As a result, Dr. Harris opined that N.U.M. was highly likely to reoffend if his confinement did not continue.
Dr. Zavalis testified about her interview with N.U.M. She made a similar diagnosis to that determined by Dr. Harris and also recognized and found relevant the fact that N.U.M. did not provide a consistent history of his past conduct, observing that N.U.M. acknowledged "he's struggling with identifying why he acted out in the past." She also testified to the impediment this raised for N.U.M.'s treatment:
When I asked him . . . as far as identifying obstacles to addressing the treatment, anything that might interfere with treatment, he wasn't able to identify anything. You know, he doesn't really see any obstacles. That he . . . could not think of any problematic aspect of his personality that might interfere with hi[s]. . . treatment. . . . I interpreted that to mean that he . . . thinks he's doing pretty well in treatment. That there's not a whole lot that he needs to do differently.
N.U.M. also testified. The judge did not find credible N.U.M.'s assertion that he had never mentioned in the past to an earlier evaluator that he had seven or eight victims and also found incredible N.U.M.'s claim that he made up his past history and lied about past hallucinations and hearing voices.
On December 16, 2010, Judge Freedman rendered a thorough oral decision in which he found, among other things, clear and convincing evidence that N.U.M. has been inconsistent in reporting his past conduct and in engaging in treatment. He concluded that N.U.M. "has not mitigated his risk to sexually re-offend by treatment" and "would have serious difficulty controlling his sexually violent behavior to such a degree he would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence."
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 N.U.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. We affirm substantially for the reasons set forth in Judge Freedman's thorough and thoughtful oral decision.