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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–5498–12T2

    Decided: March 26, 2014

Before Judges Grall and Accurso.

M.N.A. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4–27.24 to –27.38. He appeals from the June 18, 2013 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4–27.35. We affirm.

M.N.A. is thirty-two years old and has been committed to the STU since 2003.   His first reported sexual offense occurred when he was sixteen years old.   He was charged with harassment after he peered over a bathroom stall at a McDonalds and repeatedly asked an eight-year-old boy to show him his penis.   The charge was later dismissed.   The following month, another eight-year-old boy reported that M.N.A. and another boy “ganged up” on him following a swim.   The other boy, who was eleven, held the eight-year-old's hands behind his back while M.N.A. performed oral sex on the younger boy, despite the boy imploring him to stop.   M.N.A. also unsuccessfully attempted to anally penetrate the youth.   M.N.A. and the eleven-year-old then began to “do stuff to each other.”   M.N.A. was adjudicated delinquent for endangering the welfare of a child and placed in detention.

He was thereafter placed at Milestones, a residential sex offender program but was discharged after he fondled the youngest boy in the program thirty days after his admission and for touching other boys in the program.   M.N.A. was discharged from two subsequent residential treatment placements for similar behavior.   He was adjudicated in violation of probation and committed to the Juvenile Medium Security Facility at Bordentown.   While there, appellant committed the predicate offense.

In September 2000, at age nineteen, while confined at Bordentown, appellant performed oral sex on two fifteen-year-old inmates.   He pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14–3(b), and was sentenced to the Adult Diagnostic and Treatment Center (ADTC) for a term of eighteen months.   In March 2003, just prior to his scheduled release, the State filed a petition for M.N.A.'s commitment under the SVPA. After a hearing on June 23, 2003, appellant was found eligible for SVPA commitment.   A judgment was entered on that date.

Since his initial commitment, M.N.A. has been recommitted to the STU at each annual review hearing.   We have reviewed and affirmed several such determinations, most recently in 2010.  In re Civil Commitment of M.N.A., No. A–4354–09 (App.Div. Dec. 17, 2010).

The review hearing at issue here took place on May 30 and June 18, 2013.   The court heard testimony from Dr. Alberto M. Goldwaser, a psychiatrist, and Dr. Christine Zavalis, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC).  Dr. Goldwaser diagnosed M.N.A. with pedophilia, non-exclusive to males;  paraphilia not otherwise specified (NOS) (hebephilia sexually attracted to males);  and personality disorder NOS, with antisocial features.   He testified that M.N.A.'s Static–99R score, an actuarial measure of relative risk for sexual offense recidivism, was an 8, which places him in a high risk category.   Dr. Goldwaser also testified that M.N.A. minimalized his conduct in his sexual offenses.   According to Dr. Goldwaser, M.N.A. uses sex to sooth his anger.   Dr. Goldwaser also testified that M.N.A. had a significant amount of MAP placements due to his anger, which in turn has prevented M.N.A.'s placement into the Therapeutic Community (“TC”), which would be necessary for release.

According to Dr. Goldwaser, M.N.A.'s sexual disorder is an urge that he cannot control and his personality disorder prevents him from feeling discomfort from the pain he produces in others.   Those conditions will not spontaneously remit, and the combination of disorders increases the likelihood of acting on his urges in a sexually violent manner.   Dr. Goldwaser testified that M.N.A. remains highly likely to reoffend if not committed to the STU for continued treatment in phase three.

Dr. Zavalis diagnosed M.N.A. with pedophilia, sexually attracted to males;  paraphilia NOS (hebephilia);  depressive disorder NOS (by history);  impulse control disorder NOS;  and personality disorder NOS (with antisocial and borderline features).   Dr. Zavalis concurred with Dr. Goldwaser that M.N.A. still required inpatient, phase three sex-offender treatment and remained at high risk for recidivism as reflected in his score of 8 on the Static–99R.   She testified that relying on the Static–99R was appropriate in this case because one of M.N.A.'s sexual offenses was committed when he was an adult.   In her report in evidence, Dr. Zavalis noted that in addition to his reported offenses, M.N.A. admitted to abusing several other children, including a six-year-old male cousin when he was thirteen or fourteen.

Dr. Timothy P. Foley, a clinical and forensic psychologist, testified on M.N.A.'s behalf.   Dr. Foley evaluated M.N.A. and prepared a report based on that evaluation.   Dr. Foley did not agree with Dr. Goldwaser and Dr. Zavalis's diagnoses of pedophilia and hebephilia.   He characterized M.N.A.'s offense history as “sexual misconduct from the age of 12 to 19,” and found no evidence of M.N.A.'s sexual attraction to or behavior with prepubescent children after M.N.A. turned sixteen.   Dr. Foley thus found inadequate evidence to diagnose pedophilia, no indication of paraphilia NOS, and the sub-diagnosis of hebephilia inaccurate as that diagnosis does not appear in the DSM IV or V. Dr. Foley rejected use of the Static–99R because M.N.A.'s offenses were committed when M.N.A. was a juvenile, and the predicate act was consensual, which he maintained eliminates the predictive value of the metric.   Dr. Foley testified that he believed M.N.A. is less than highly likely to reoffend and should be discharged on a gradual furlough plan to reintegrate him into the community.

M.N.A. testified on his own behalf and stated that he is doing well in treatment and has completed many modules.   He understood his deviant behavior, acknowledged that he was a predator, and professed to having empathy for his victims.   If he were to be released, M.N.A. testified that he understood his release would have to be a conditional discharge, which gradually reintegrated him back into society.

Following the conclusion of testimony, Judge Freedman ordered M.N.A.'s continued commitment to the STU. After reviewing the testimony, the judge explained:

[B]ased on the testimony that I've reviewed and [the] treatment notes and my review of the entire record, [M.N.A.'s] been diagnosed with three diagnoses by many different therapists over the years.   So I reject Dr. Foley's view that he has no predisposing diagnosis and I credit the State's experts with regard to the fact that he does.

And I find by clear and convincing evidence that [M.N.A.] does suffer from a mental abnormality and a personality disorder;  that as his [record] and his ․ further admissions of victims [shows, he is] clearly predispose[d] ․ to engage in acts of sexual violence.   And I find that his mental abnormality and his personality disorder affect him in all three areas, emotionally, cognitively, and volitionally to predispose him and that if released he would have serious difficulty controlling his sexually violent behavior and to such a degree he would in the reasonably foreseeable future engage in acts of sexual violence and that he is still committable and that under the balancing test of [In re Commitment of W.Z., 173 N.J. 109, 132 (2002) ], he is still dangerous.

This appeal followed.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement “in a secure facility for control, care and treatment.”  W.Z., supra, 173 N.J. at 120, 132;  N.J.S.A. 30:4–27.26. In order to secure an order for commitment under the SVPA, the State must prove the individual is a threat to the health and safety of others because of the likelihood of engaging in sexually violent acts.  W.Z., supra, 173 N.J. at 132.   The State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is “highly likely” the person “will not control his or her sexually violent behavior and will reoffend.”  Ibid. The court must address the person's “present serious difficulty with control over dangerous sexual behavior,” and the State must establish “that it is highly likely that” the individual will reoffend “by clear and convincing evidence.”   Id. at 132–34;  see also In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 610–11 (App.Div.2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment.  N.J.S.A. 30:4–27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126–32.  “[A]n 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.”  Id. at 130.

The scope of appellate review of a judgment for commitment under the SVPA is “extremely narrow.”  In re Commitment of J.P., 339 N.J.Super. 443, 459 (App.Div.2001).   The trial court's decision is to be given the “ ‘utmost deference’ and modified only where the record reveals a clear abuse of discretion.”  Ibid. (quoting State v. Fields, 77 N.J. 282, 311 (1978));  see also In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App.Div.), certif. denied, 177 N.J. 490 (2003).  “The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous.”  In re D.C., 146 N.J. 31, 58–59 (1996).

Applying those standards here, we are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence.  State v. Locurto, 157 N.J. 463, 470–71 (1999).   We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of June 18, 2013.



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