IN THE MATTER OF THE CIVIL COMMITMENT OF K.W. SVP-70-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-70-00.
Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for appellant K.W. (Joseph E. Krakora, Public Defender, attorney).
Erin Greene, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).
Before Judges Messano and Lihotz.
K.W., a thirteen-year resident of the Special Treatment Unit (STU), which is a secure custodial facility designated for the treatment of persons in need of involuntary civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, appeals from an order for his continued civil commitment following an annual review hearing. On appeal, K.W. argues new evidence undermines his conviction for the predicate offense such that the State failed to prove by clear and convincing evidence that he suffers from a condition making him highly likely to commit sexually violent offenses if released. We reject this contention and affirm.
A person convicted of a sexually violent offense may be subject to civil commitment as a "[s]exually violent predator" upon proof he or she "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 SVPA defines a "[m]ental abnormality" as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. Such disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). However, "substantive due process does not require the extreme finding of a total lack of capacity to control such dangerous behavior." Id . at 126-27. That is, "[a] finding of mental abnormality that results in an impaired but not a total loss of ability to control sexually dangerous behavior can be sufficient[.]" Id . at 126. To continue an order of commitment, the State bears the burden to prove by clear and convincing evidence that the committee suffers from a mental abnormality or personality disorder, and remains in need of treatment because of a present serious difficulty controlling harmful sexually violent behavior causing the committee to be highly likely to reoffend if released. N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32a; N.J.S.A. 30:4-27.35. See also In re Commitment of W.Z., supra, 173 N.J. at 130 ("Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community."); In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 610 (App. Div. 2003) (reiterating the legislative purpose "to help the committee and protect society"), certif. denied, 179 N.J. 312 (2004).
The scope of our review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Recognizing the trial court's expertise in the handling of these cases, we accord "'utmost deference'" to the trial judge's determinations. In re Commitment of J.P., 339 N.J.Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). Reversal is warranted if the court's factual findings are unsupported or "the record reveals a clear abuse of discretion." Ibid. (citation omitted). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
K.W. was initially committed to the STU on October 5, 2000. K.W. has an extensive nonsexual criminal history commencing when he was a juvenile in 1974, and his first adult conviction in 1980. We briefly review K.W.'s criminal sexual history, which began twenty years prior to the offense upon which his commitment was predicated, when he was just thirteen years old. On December 10, 1976, he was charged with and adjudicated delinquent on two counts, which, had they been committed by an adult, would constitute impairing the morals of a minor. His custodial sentenced was suspended and he was placed on probation for two years. On November 4, 1981, K.W. was arrested and charged with burglary and attempted sexual assault. He was convicted of the burglary, for which he received a county jail sentence, and the sexual assault was downgraded to disorderly conduct and later dismissed. In 1983, K.W. was charged and later convicted of assault, for which his sentence was suspended, and burglary resulting in a county jail sentence of 364 days, among other crimes.
K.W.'s next sexual offense occurred in April 1985. A friend, who was babysitting the eight-year-old female victim, invited K.W. over for a party at her home. Around 2 a.m., K.W. advised the babysitter he was not feeling well and asked to go lay down. Although the babysitter believed K.W. was entering another bedroom, he in fact entered the bedroom of the victim, where the babysitter discovered him standing over the girl's bed; her nightgown was pulled above her head; her underwear was pulled down; her legs were spread; and his penis was exposed. The victim reported K.W. had "'humped her' and that he had put it inside of her[.]" He also kissed her and put his tongue in her mouth. K.W. was charged with aggravated sexual assault, sexual assault, and ...