Opinion
DOCKET NO. A-0828-12T2
04-22-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF C.B., SVP 615-11.
Joseph E. Krakora, Public Defender, attorney for appellant C.B. (Maritza Rodríguez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-615-11.
Joseph E. Krakora, Public Defender, attorney for appellant C.B. (Maritza Rodríguez, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief). PER CURIAM
Appellant C.B. appeals from the April 10, 2012 judgment involuntarily committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. C.B. contends that the State failed to prove by clear and convincing evidence that he is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined. C.B. also contends that because the State willfully withheld sex offender treatment, it cannot rely on the lack of treatment to justify civil commitment. We disagree with these contentions and 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; see also N.J.S.A. 30:4-27.25. Our Supreme Court has held that to involuntarily commit an individual pursuant to the SVPA, the State must establish by clear and convincing evidence:
(1) that the individual has been convicted of a sexually violent offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that as a result of his psychiatric abnormality or disorder, it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.
[In the matter of the Civil Commitment of R.F., ___ N.J. ___, ___ (2014) (slip op. at 39) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)) (citations and internal quotation marks omitted).]
In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Aggravated sexual assault is considered a sexually violent offense. Ibid. In this case, in 1991, C.B. was twice convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The first conviction stemmed from the sexual assault of his four-year-old niece, to whom he gave beer and attempted anal and vagina intercourse. The second conviction, which occurred while C.B. was awaiting sentencing on the other offenses, stemmed from the sexual assault of a fourteen-year-old girl, S.W. C.B. grabbed S.W. on the street, threatened to kill her, and pulled her into an abandoned house. He then forced her to fellate him before brutally raping her while choking her and banging her head against a brick floor. S.W. was able to escape into the street, where C.B. caught and beat her until others approached.
While out on bail for the offense, C.B. fired a shotgun at a person during an attempted robbery. He was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4c.
C.B. was sentenced to an aggregate thirty-year term of imprisonment with fifteen years of parole ineligibility. He was not sentenced as a sex offender under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
There is no dispute that: C.B. is considered a sexually violent predator; has an extensive substance abuse history; was diagnosed with alcohol dependence in a controlled environment and an anti-social personality disorder; was provisionally diagnosed with Pedophilia; and received a score of twenty-two on the MnSOST-R and seven on the Static-99R, which placed him in the high risk category to reoffend sexually. And it is undisputed that while incarcerated, C.B. tested positive for marijuana and was found guilty of thirty disciplinary charges, including possession of drugs, fighting, threatening bodily harm, conduct which disrupts, refusing to obey, failure to comply with written rules, refusing to work or accept work assignments, destroying or damaging government property, and possession of gang-related material. He was also transferred at least nine times to various prisons throughout the State, and never participated in sex offender treatment. Although he participated in some substance abuse treatment, he did not believe he was an addict or that he needed further treatment.
At the April 10, 2012 hearing, the State's expert psychiatrist and expert psychologist opined that C.B. presently suffers from a mental abnormality and personality disorder that placed him at high risk to sexually reoffend if not confined to a secure facility for control and treatment. Each expert explained, in detail, the basis for their opinions.
C.B. testified but presented no expert evidence.
In an April 10, 2012 oral opinion, Judge James F. Mulvihill made detailed findings and concluded the State proved by clear and convincing evidence that: C.B. was convicted of a sexually violent offense; C.B. presently suffers from a mental abnormality or personality disorder; and that as a result of C.B.'s psychiatric abnormality or disorder, it is highly likely he will sexually reoffend if not confined to the STU. The judge's decision did not rest upon defendant's lack of substance abuse treatment.
Our "review of a commitment determination is extremely narrow." R.F., supra, (slip op. at 41) (quoting In re D.C., 146 N.J. 31, 58 (1996)). "The judges who hear SVPA cases are generally specialists and their expertise in the subject is entitled to special deference. Ibid. (citation and internal quotation marks omitted). We "should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 42 (quoting D.C., supra, 146 N.J. at 58. "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Id. at 42-43 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We find no mistake in this case. The record amply supports C.B.'s commitment under the SVPA. We have considered C.B.'s contentions to the contrary in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Mulvihill expressed in his comprehensive and well-reasoned oral opinion. However, we make the following brief comments.
C.B. was not sentenced under the Sex Offender Act. Accordingly, the State was not required to provide sex offender treatment during his incarceration. In re Civil Commitment of W.X.C., 204 N.J. 179, 202 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION