On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-377-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and St. John.
Appellant G.X.R. appeals from a judgment entered on February 15, 2012, continuing his civil commitment to the Special Treatment Unit (STU), a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following our careful review of the record on appeal, we affirm.
The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as: a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and 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.]
"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).
Involuntary commitment requires the State to prove by "clear and convincing evidence that the individual poses a threat to the health and safety of others," J.M.B., supra, 197 N.J. at 571 (internal citation and quotation marks omitted), because of a "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 the reasonably foreseeable future, W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, U.S. , 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33.
"Put succinctly, '[c]ommitment under the [SVPA] 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.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding that a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder" (citing W.Z., supra, 173 N.J. at 127)).
Appellate review of a commitment under the SVPA, is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have recognized that "'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), certif. denied, 192 N.J. 296 (2007). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630. A reviewing court must "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).
The record reveals that fifty-two-year-old G.X.R. has committed numerous offenses, which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. G.X.R. has an extensive history of sexual offenses against pubescent and prepubescent girls that started in the late 1980s and continued until 2000, resulting in his 2002 guilty plea to the predicate offense of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), stemming from an incident where he forcibly touched the stomach and thigh of a twelve-year-old girl, after which time he became sexually aroused and masturbated in her family's bathroom. Following his guilty plea, the judge sentenced G.X.R. to a five-year term at the Adult Diagnostic and Treatment Center at Avenel.
In August 2004, shortly before G.X.R. was due to be released from prison, the State filed a petition for his involuntary commitment to the STU on grounds that he was a sexually violent predator. In support of its petition, the State relied on G.X.R.'s 2002 child endangerment conviction as well as three prior convictions for sexual assaults on children committed between 1981 and 1989.
In 1981, G.X.R. was arrested in Florida for licking the vagina of two nine-year old girls and digitally penetrating each. One of the girls also stated that G.X.R. inserted his penis into her vagina. G.X.R.'s next predatory act occurred in 1987 when, during three separate incidents with three different girls between the ages of twelve and fifteen, he exposed himself while masturbating. He pled guilty to two counts of sexual assault, and one count each of endangering the welfare of a child and criminal sexual contact. G.X.R.'s next crime occurred in 1988, when two female students, ages eleven and twelve, reported to school officials that while walking to school, a male stopped in his vehicle and showed them a pornographic magazine. Using his license plate number, police were able to apprehend G.X.R. He pled guilty to endangering the welfare of ...