Opinion
DOCKET NO. A-2495-15T2
12-01-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF J.D. SVP-668-13.
Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant J.D. (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, on the briefs). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-668-13. Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant J.D. (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, on the briefs). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief). PER CURIAM
Petitioner, J.D., appeals from February 25 and March 1, 2016 orders committing him 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. We affirm.
On November 6, 2009, when petitioner was seventeen-years-old, he pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2, for having "sexual relations" with a child less than thirteen years old in a church bathroom, and one count of unlawful possession of a knife, N.J.S.A. 2C:39-5(d), stemming from an incident where J.D. had a knife in the presence of his father. He received a three-year suspended sentence, conditioned upon his completion of a residential treatment program and all aftercare recommendations, and three years' probation. Petitioner violated probation when he was terminated from residential treatment, and as a result, he was sent to New Jersey Training School for Boys (Jamesburg). In May 2011, petitioner was transferred from Jamesburg to the Adult Diagnostic and Treatment Center.
The clinical certificates of two psychiatrists dated March 4, 2013, diagnosed petitioner with Sexual Disorder NOS (Not Otherwise Specific) and Dysthymia (Persistent Depressive Disorder). The trial judge issued a temporary commitment order based upon the certificates, and on July 30, 2014, the trial judge ordered petitioner be committed to the STU.
Petitioner stipulated to the commitment at that time.
Petitioner's pleas and sentence were vacated on July 1, 2015, after he filed for post-conviction relief because he had not been adequately informed his pleas could lead to his involuntary commitment. The 2013 petition for civil commitment was dismissed without prejudice on July 2, 2015, because the sexual assault conviction had been vacated. Petitioner pled to two aggravated sexual assault charges in January of 2016, and the State filed an Amended Petition for Commitment under the SVPA on February 24, 2016, seeking commitment, or "in the alternative, since probable cause has been established that [petitioner] is a sexually violent predator, an order should be entered for [him] to be taken to a psychiatric hospital for five days so that he may be evaluated for SVP commitment." At the State's request, the trial court reopened the commitment proceedings by vacating the July 2, 2015 order dismissing the original commitment petition. On February 29, 2016, the trial court sentenced petitioner to a three-year, time-served sentence.
An emergent appeal was filed on February 26, 2016, by petitioner, seeking a stay pending appeal. The emergent application was denied on February 29, 2016, because petitioner had not applied to the trial court seeking a stay. --------
Petitioner was then transported to the STU. Dr. Nicole Dorio and Dr. Indra Cidambi attempted to evaluate petitioner when he was transported to the STU, but he declined to be interviewed by either doctor. Both doctors reviewed petitioner's records, which included reports as recent as 2015 and provided detailed clinical certificates. Both doctors diagnosed petitioner with Pedophilic Disorder, other Specified Paraphilic Disorder-Non-Consent, and Antisocial Personality Disorder-Severe.
The certificates were provided to the court in a hearing on March 1, 2016. Petitioner's counsel was notified just thirty minutes prior to the hearing but was in attendance along with petitioner. After reviewing the record, the trial judge then issued a Temporary Commitment Order. This appeal followed.
Petitioner argues the trial court erred by vacating the dismissal order and reinstating the dismissed proceedings. He also argues the State did not establish the requirements for commitment under the SVPA. We disagree.
"The scope of appellate review of a commitment determination is extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014). We give the utmost deference to the reviewing judge's determination, as these judges are "specialists" in SVPA matters. Id. at 174 (citing In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). The trial court's determination will be subject to modification only where "the record reveals a clear mistake." Id. at 175 (quoting In Re D.C., 146 N.J. 31, 58 (1996)). The findings of the trial court "should only be disturbed if so clearly mistaken that 'the interests of justice demand intervention'"; as long as the findings are supported by "sufficient credible evidence present in the record," the findings will not be disturbed. Id. at 174-75 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
At a commitment hearing, the State must prove the individual has been convicted of a sexually violent offense, the individual has "a mental abnormality or personality disorder," and the individual is highly likely to reoffend due to the disorder. In Re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002). Because petitioner had not yet been sentenced on the sexual assault charges, he asserts there was no legal basis for reinstating a petition for commitment, hence the trial judge's vacation of the dismissal order was in error. We disagree.
The trial judge vacated the dismissal of the 2013 commitment order because petitioner had already entered pleas for two aggravated sexual assault charges based on the same indictment as the initial litigation and sentencing was scheduled for four days later. The judge's order specified the commitment order would not take effect until petitioner had been sentenced. To be committed as a "sexually violent predator" under the SVPA, one must have a conviction or been adjudicated delinquent on a sexually violent offense. N.J.S.A. 30:4-27.26. The predicate offense is necessary for commitment. See In re Commitment of P.C., 349 N.J. Super. 569, 576 (App. Div. 2008). Here, an adequate plea had been entered, and the order was conditioned upon sentencing happening on February 29, 2016. The commitment order did not take effect until petitioner had been sentenced and adjudication was complete. Petitioner was placed in the same position he occupied but for the post-conviction relief process, which altered little.
We also reject petitioner's assertion the state did not present proof that he qualified as a "sexually violent predator" under the SVPA at the February 24, 2016 commitment hearing and did not show he "currently presents a high likelihood of committing sexually violent acts if not committed." In re Commitment of P.Z.H., 377 N.J. Super. 458, 466 (App. Div. 2005) (citing W.Z., supra, 173 N.J. Super. at 132-34). Petitioner argues the state only relied on the 2013 certificates and presented no recent psychiatric evidence, failing to address his current likelihood to reoffend.
The New Jersey Supreme Court requires the State to show the individual is "'highly likely' to sexually reoffend." In re Civil Commitment of R.F., 217 N.J. 152, 183 (2014) (quoting W.Z., supra, 173 N.J. at 132). A review of the record demonstrates petitioner previously stipulated the State's proofs supported such a finding. Further, petitioner would have been evaluated upon his transfer to the STU, but he declined to be interviewed by the doctors. This court has recognized that a petitioner should not be able to "benefit from his unjustified refusal" to cooperate with a state psychiatrist. In Re Civil Commitment of A.H.B., 386 N.J. Super. 16, 30 (App. Div. 2006) (upholding commitment proceedings where petitioner was not evaluated within required time period due to his own refusal to participate).
At the March 1, 2016 hearing, petitioner appeared with counsel; the State presented two current psychiatric certificates detailing petitioner's serious on-going difficulty controlling his sexual behavior and his high likelihood of re-offending. Any defect remaining from the procedurally awkward manner of presentation was thus cured. We do not address any of petitioner's remaining arguments regarding notice and venue because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION