On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-43-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
D.A.C. appeals from the March 3, 2010 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. D.A.C. maintains the State's evidence was insufficient to support the court's conclusion that civil commitment was warranted. We disagree and affirm.
An involuntary civil commitment may follow service of a criminal sentence or disposition when the offender "suffers 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(b).
[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely 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)].
The court must address the offender's "present serious difficulty with control," id. at 128 (internal quotation marks omitted), and the State must establish by clear and convincing evidence that it is highly likely the committee will reoffend. See id. at 132-33. Accord In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). "Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)), cert. denied, __ U.S. __, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
Our review of the trial court's findings when ordering a civil commitment under the SVPA is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (stating a trial court's decision is given the "upmost deference"), certif. denied, 177 N.J. 490 (2003). We modify a judgment of commitment "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
These facts were presented at the commitment review hearing. In 1991, D.A.C. pled guilty to one count of terroristic threats and one count of endangering the welfare of children, after he provided alcohol to and watched pornographic movies with three underage boys, ages ten, twelve, and fourteen. In addition, D.A.C. had disorderly persons convictions for possession of marijuana in 1984 and 1988 and for corruption of the morals of a minor. While on probation for the endangering charge, D.A.C. pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a, for the molestation of his three-year-old step-daughter.
D.A.C. admitted to police that for several months he slept in the child's bed, committing repeated acts of cunnilingus, vaginal and anal digital penetration, and vaginal penile penetration upon the child. He also forced the child to fellate him. Prior to sentencing, D.A.C. was evaluated at the Adult Diagnostic Treatment Center (ADTC) by Lawrence A. Siegel, M.D., a psychiatrist. Dr. Siegel concluded D.A.C. was compulsive and repetitive. The court ordered D.A.C. confined to the ADTC to serve his sentence. See N.J.S.A. 2C:47-1 to -3.
Before commencing his confinement at ADTC, D.A.C. attempted suicide and was treated for six months at Ancora psychiatric hospital. While at the ADTC, he committed eleven disciplinary infractions.
Prior to the conclusion of his criminal sentence, the State sought D.A.C.'s civil commitment as a sexually violent predator. An order of temporary civil commitment was entered on February 10, 2000. After a plenary hearing, a judgment civilly committing D.A.C. to the STU was entered on January 23, 2002. ...