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In the Matter of the


August 29, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-183-01.

Per curiam.



Argued August 6, 2012 -

Before Judges Sapp-Peterson and St. John.

W.A. appeals from the January 23, 2012 order continuing his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4--27.24 to --27.38. We affirm.


An involuntary civil commitment can follow service of a sentence, or other criminal 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.

[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 that he or she will not control his or her sexually violent behavior and will reoffend. [In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The court must address the committee's "present serious difficulty with control," and the State must establish, by clear and convincing evidence, that it is highly likely the committee will re-offend. Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

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.'" W.Z., supra, 173 N.J. at 120 (quoting N.J.S.A. 30:4-27.26).

"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.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). See also In re Civil 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)).

Our review of a trial judge's order continuing a commitment under the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). This is because we recognize "'committing judges under the SVPA are specialists in the area,'" and their "'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). Moreover, "[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." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, we will not disturb the trial judge's determination unless "the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630.

To that end, we "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)). After thoroughly reviewing the record, under this standard of review, we are satisfied the State has met its burden in this case.


The predicate acts ultimately resulting in W.A.'s commitment to the STU stem from his guilty pleas for two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); one count of aggravated assault, N.J.S.A. 2C:12-1(b)(1); and one count of conspiracy, N.J.S.A. 2C:5-2. While awaiting sentencing on these offenses, W.A. sexually assaulted his twelve-year-old cousin in the basement of her home while her family was upstairs. W.A. later pled guilty to aggravated assault, N.J.S.A. 2C:12-1(b)(1); endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and criminal restraint, N.J.S.A. 2C:13--2. He was sentenced to ten years in prison with three years of parole ineligibility. With regard to charges for which he had previously pled guilty and was awaiting sentencing, he was sentenced to time served in the county jail.

In June 2001, the State filed a petition for civil commitment pursuant to the SVPA. He was conditionally committed to the STU in July 2001. On appeal, we affirmed. In re Civil Commitment of W.D.A., Nos. A-1591-02, A-6604-02 (App. Div. Nov. 15, 2006). In an oral opinion rendered on March 13, 2003, Judge Freedman found the State proved, by clear and convincing evidence, that W.A. was a sexually violent predator, and entered an order on that same date committing W.A. to the STU.

W.A. appealed this determination, and while the appeal was pending, Judge Peretti conducted the review hearing on July 23, 2004. At the conclusion of the hearing, the judge entered an order continuing W.A.'s commitment to the STU, after being satisfied, by clear and convincing evidence, that W.A. continued to be a sexually violent predator and was highly likely to recidivate. W.A. appealed, and by order dated August 28, 2003, the pending first appeal, Docket No. A-1591-02, was consolidated with the second appeal, Docket No. A-6604-02. In an unpublished opinion, we affirmed Judge Freedman's and Judge Perretti's findings that the requirements for commitment under the SVPA were proven by clear and convincing evidence. W.D.A., supra, Nos. A-1591-02, A-6604-02.

In June 2010, Judge Freedman entered a consent order transferring W.A. into the Therapeutic Community (TC). Notwithstanding this order, the transfer did not occur. When the matter proceeded before Judge Mulvihill for a review hearing in February 2011, the judge acknowledge the consent order but did not address the matter because the issue had not been briefed and had been before another judge. By order of that same date, the judge continued W.A.'s commitment. On appeal, we affirmed Judge Mulvhill's order continuing W.A.'s involuntary commitment to the STU, but remanded for further proceedings related to W.A.'s claim that the STU violated the June 25, 2010 order. In re Civil Commitment of W.A., No. A-3352-10, (App. Div. July 6, 2011).

Judge Freedman conducted a hearing over two non-consecutive days, during which the State presented four witnesses, two of whom, Dr. Pogos Voskanian, a psychiatrist, and Dr. Rosemarie Vala-Stewart, a psychologist, were qualified as experts, without objection, in their respective fields. In addition, testimony was given by Dr. Merrill Main, the STU's Clinical Director, and Jacqueline Ottino, Program Coordinator, who served as a facilitator in the Modified Activities Program (MAP).

In a comprehensive oral opinion rendered on January 23, 2012, Judge Freedman continued W.A.'s commitment. The court found unquestionably that it was agreed W.A. would be placed in the TC: "They may have had a change of heart or whatever the reason was, and once the interview process was started" -- a process the court found did not exist at the time it was agreed W.A. would be transferred to the TC -- "they used it to reject him." Notwithstanding this finding, Judge Freedman determined that W.A.'s conduct between the time of the agreement and the hearing, which included testing positive for marijuana and being placed in MAP, was conduct "which clearly would have gotten him thrown out of the TC if he was in it," and that in addition to testing positive, W.A. refused to name those persons who he claimed were smoking marijuana and caused him to be subjected to secondhand smoke. The judge concluded there was no adequate basis to justify W.A.'s admission into the T.C.

Turning to his continued civil commitment, Judge Freedman credited the testimony of the experts and found W.A. continued to suffer from a mental abnormality and personality disorder, as diagnosed by both experts, and that these conditions affect W.A. in all areas, emotionally, cognitively, and volitionally. He concluded that W.A. is predisposed to engaging in acts of sexual violence as his sexual history shows:

[I]f he were released now[, it] would still be highly likely that he would have serious difficulty controlling his sexually violent behavior and would, within the reasonably foreseeable future, be engaging in such conduct again. He . . . offended against a 12-year-old while he was awaiting sentencing on a rape of . . . an adult female, and it was a violent rape.

And . . . to this day, as shown by the difference between the treatment notes, as pointed out . . . by counsel, at his . . . evaluation or interview by Dr. Voskanian[,] he's still not clearly admitting his . . . offending.

So, for all these reasons . . . I find that [W.A.]'s commitment needs to be continued.

And as I've already indicated[,] there is no basis . . . under the present set of circumstances to direct that he be placed in the TC.

So, for those reasons[,] I'm going to continue his commitment and set a review date of 12/21/12.

Let me just add to the record. I . . . neglected to . . . mention. What [W.A.] does or what he "tends to do," as the Appellate Division in W.Z. indicated, is very, very serious with a lot of violence which he continues to deny. And while his propensity to do it [may be] not as high as some[,] it's high enough in conjunction with the nature of what he tends to do for the

[c]court to conclude, under . . . the balancing test of W.Z.[,] that he is, in fact, or continues to be[,] dangerous and . in need of commitment, for that reason as well.

Our review of Judge Freedman's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459. See also V.A., supra, 357 N.J. Super. at 63. Having reviewed the record, we find no basis to disturb Judge Freedman's factual and legal conclusions, including his explained credibility determinations. The record supports the judge's determination by clear and convincing evidence.



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