On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 202-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
F.D. appeals from a September 30, 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. He has presented two arguments, one relating to the procedure followed during the hearing and the other relating to the sufficiency of the evidence. We reject both 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 record reveals that F.D. is now fifty-five years old. He has had a considerable criminal history, which we described in an earlier opinion and need not repeat here, except to summarize that F.D. was arrested for six sex-related offenses, five of which resulted in convictions, the first of which occurred in 1976 and the last in 2001. See In re Commitment of F.D., No. A-5929-08 (App. Div. Feb. 1, 2010) (slip op. at 3-6).
The State first petitioned for and obtained F.D.'s commitment in 2001. Commitment orders entered in 2003 and 2009 were appealed and affirmed by this court. See Ibid.; In re Commitment of F.D., No. A-4637-02 and No. A-2267-05 (App. Div. Dec. 11, 2009). The present appeal concerns an order continuing F.D.'s commitment entered on September 30, 2010. In this appeal, he argues that the judge's findings were against the weight of the evidence. He also argues there were procedural defects in the trial court proceedings, a matter which we consider first.
I The review hearing started on July 19, 2010. At that time, the judge heard the testimony of two State's witnesses, Dr. Alberto M. Goldwasser and Dr. Joy Ellick. The hearing continued on July 23, 2010; at the outset of that proceeding, the State acknowledged that it had rested its case. The judge then heard the testimony of F.D.'s expert witness, Dr. Christopher Lorah. Immediately thereafter, counsel provided the judge with their oral summations. F.D.'s counsel particularly focused on what she alleged to be the difficulties in communication between F.D. and Dr. Goldwasser. Counsel argued that F.D. was confused by Dr. Goldwasser's questioning or his mode of examination and urged the rejection of Dr. Goldwasser's conclusions because they were based on the expert's lack of patience with F.D. and not on F.D.'s actual condition. Indeed, during the summation, the judge and F.D.'s counsel engaged in a colloquy that suggested the judge's agreement that there was some degree of miscommunication between F.D. and Dr. Goldwasser. That is, F.D.'s counsel argued that other evaluators had previously concluded F.D. has cognitive limitations, and that Dr. Goldwasser unfairly determined that this conclusion was wrong, that F.D. has "average intelligence," and is "malingering" and "manipulative." The judge responded, suggesting "there may have been some kind of miscommunication" because Dr. Goldwasser has "a strong accent."
The attorneys completed their summations, and the judge reserved decision.
The parties were again in court on September 30, 2010, at which time the judge immediately revisited the earlier discussion about Dr. Goldwasser's evaluation of F.D.:
I was concerned about whether or not . . . [F.D.], when he was interviewed by Dr. Goldwasser, whether he was really understanding Dr. Goldwasser. Because Dr. Goldwasser does have an accent which I had no problem with, . . . but I was concerned that [F.D.] may have had a problem understanding Dr. Goldwasser; and, therefore, I thought maybe Dr. Goldwasser may have misinterpreted also what [F.D.] was ...