IN THE MATTER OF THE CIVIL COMMITMENT OF J.H. SVP-540-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-540-09.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant J.H. (Joseph E. Krakora, Public Defender, attorney).
Erin Greene, Assistant Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).
Before Judges Messano and Lihotz.
In these matters consolidated by the court, fifty-two-year-old J.H. appeals from the May 6, 2011 and August 24, 2012 orders continuing his involuntary 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. On appeal, J.H. argues the State's experts impermissibly relied on hearsay in formulating their opinions, and the trial judge failed to properly weigh mitigating evidence of his treatment progress. We have considered these arguments in light of the record and applicable law, and affirm.
A person convicted of a sexually violent offense may be subject to civil commitment as a "sexually 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 "mental 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 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.) (citations omitted), 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) (citing Fields, supra, 77 N.J. at 311).
J.H.'s prior sexually violent offenses date back to 1979, when he was eighteen years old. J.H. was arrested and charged with breaking and entering with intent to steal; theft; breaking and entering; attempted breaking and entering with intent to steal or rape; and solicitation of a lewd or unlawful sexual act. He was sentenced to the Yardville Correctional Center for an indeterminate term, not to exceed three years, to be served concurrently with a parole violation from a prior adjudication. He was also sentenced for an indeterminate term, not to exceed six months, for assault and battery, to be served concurrently with the parole violation. Charges resulting from a September 1982 armed robbery and sexual assault were dismissed by a Grand Jury. However, in October 1982, J.H. was again arrested and charged with robbery and aggravated sexual assault, to which he pled guilty in 1983. The arrest resulted from the following incident:
On or about October 16, 1982, E.H. (age 21) was sleeping in her bed at the Saxony Motel in Elizabeth, New Jersey[, ] when she awoke and saw [J.H.] kneeling at the end of her bed. [J.H.] asked her for money but she told him that she did not have any. [J.H.] then stated "I heard white girls like to have their pussy eaten" and "if you don't give it, I'll take it." When she started to scream, he grabbed her by the throat and began choking her. After telling her to keep quiet, he began to lick her vagina. E.H. told him to stop and punched him in the face. [J.H.] choked her again, told her to be quiet and penetrated her vaginally. After having intercourse with her, he took her cigarettes and an undetermined amount of change and left the motel room. E.H. then notified the police, and [J.H.] was identified from a photo-lineup. The motel manager also identified [J.H.] as the individual who had been loitering on the premises of the motel that morning.
J.H. was sentenced to eight years in prison for second-degree robbery, with a four-year period of parole ineligibility, and twelve years imprisonment for first-degree aggravated sexual assault, with a five-year period of parole ...