Opinion
DOCKET NO. A-5858-13T2
04-20-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF M.O., SVP 464-07.
Jo Astrid Glading, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Shana Bellin, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 464-07. Jo Astrid Glading, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Shana Bellin, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
M.O. appeals from a July 28, 2014 order, which continued his 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. He argues the trial judge gave undue weight to the opinions of the State's witnesses and, ultimately, that the State failed to prove by clear and convincing evidence that, if released, he is highly likely to commit acts of sexual violence. We find no merit in M.O.'s arguments and affirm.
An individual, once convicted of a predicate offense as defined by the SVPA, may be subject to an involuntary civil commitment if suffering 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). Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).
To warrant commitment, or continuation of the individual's prior commitment, the State must prove "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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 571, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
The record demonstrates that M.O. is fifty-four-years old and has been committed to the STU since 2007. The predicate offense giving rise to his commitment was his commission of first-degree kidnapping and first-degree aggravated sexual assault, for which he was sentenced to an aggregate forty-year prison term, subject to a twenty-year period of parole ineligibility. When he "maxed out" in 2007, the State successfully obtained his civil commitment pursuant to the SVPA. We affirmed that judgment by way of an unpublished opinion. See In re Civil Commitment of M.O., No. A-1850-07 (App. Div. Aug. 24, 2009). This appeal concerns a subsequent determination made after an evidentiary hearing that the commitment should continue.
At the hearing in question, the judge heard from only the State's expert witnesses in psychiatry and psychology. The judge found both to be very credible and persuasive. The psychiatrist diagnosed M.O. with antisocial personality disorder and exhibitionism, and both experts testified that M.O.'s personality disorder does not "spontaneously remit," that M.O. has serious difficulty in controlling his sexual offending behavior, and that it is highly likely he will reoffend if released at this time.
M.O. did not testify, although he provided the judge with a letter, in which he argued it would be unfair to continue his commitment; in addition, during the end of the proceeding, the judge engaged in a colloquy with M.O. during which M.O. was able to further present his view. M.O. did not call any expert witnesses.
During this colloquy, the judge directed M.O. to learn to write English, of which M.O. is critical in this appeal. Because it has not been shown that M.O.'s refusal to learn English has been made a basis for his commitment, we need not consider this issue further.
M.O. argues in this appeal that his continued commitment is based on the assertion that he engages in exhibitionism - indeed, the record reveals that M.O. received numerous disciplinary infractions while in prison for exposing himself to female corrections officers. He claims this circumstances is greatly distinguishable from the predicate offense, which consisted of a rape of a sixteen-year-old girl at knifepoint. To the extent there may be merit to this theory about the alleged disconnection between what caused his commitment and what now keeps him committed, M.O. did not support this theory with any evidence or expert testimony. Because M.O. did not adequately develop this argument at the hearing, we decline to consider it further.
In the final analysis, the judge's findings and his expertise in these matters are entitled to deference on appeal. In re Civil Commitment of R.F., 217 N.J. 152, 174-75 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION