IN THE MATTER OF THE CIVIL COMMITMENT OF P.P. (SVP-711-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 24, 2019
• Docket: A-5036-17T5
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5036-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF P.P., SVP-711-15. _______________________________

Argued May 14, 2019 – Decided May 24, 2019

Before Judges Fisher, Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-711-15.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Rachel Frey, Deputy Attorney General argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney).

PER CURIAM

P.P., a sex offender who was civilly committed in 2015 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, appeals from a June 6, 2018 Law Division judgment continuing his commitment after a review hearing. We affirm

substantially for the reasons stated by Judge Philip M. Freedman in his oral

decision.

P.P.'s history of sexual offenses was recounted in this court's prior opinion

upholding his commitment under the SVPA:

In January 2003, P.P. pled guilty to two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c), of two fourteen-year-old girls, A.S. and J.F., with whom he had sexual intercourse. P.P. impregnated A.S. who bore a child. P.P. was sentenced to two concurrent eight-year terms of imprisonment and [community supervision for life] (CSL), and ordered to comply with Megan's Law registration requirements.

In 2007, while investigating a complaint that P.P. had sexually assaulted a six-year-old girl, the investigator discovered that P.P. was not living at the address he had registered under Megan's Law. In January 2011, P.P. pled guilty to the CSL violation, and was sentenced to eighteen months in State prison.

In May 2008, P.P. was arrested and charged with violating the condition on special sentence that prohibited him from using the internet to access social network websites. P.P. was found guilty of the charge and sentenced to eighteen months in State prison.

In May 2010, an investigator from the Gloucester County Prosecutor's Office was monitoring the internet and found suspicious file extensions on P.P.'s computer. An investigation revealed files showing an adult male engaging in various sex acts with a prepubescent female and a tutorial demonstrating how

A-5036-17T5 2 to use various objects as sex toys with a preteen daughter and avoid detection.

In August 2010, P.P. pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(b)(5)(a), and fourth-degree violation of special sentence for failure to register and notify the police of a change of address, N.J.S.A. 2C:43-6.4(d). P.P. was sentenced to six years in State prison on the endangering charge, and a concurrent eighteen months on the CSL violation. P.P. also has an adult nonsexual criminal history that includes convictions for simple assault, terroristic threats, and domestic violence resulting in a final restraining order issued against him.

[In re Civil Commitment of P.P., No. A-4011-14 (App. Div. July 18, 2017).]

The applicable law and our scope of review is well settled. Involuntary

civil commitment under the SVPA can follow completion of a custodial sentence

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. The

SVPA defines "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. The mental abnormality

or personality 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

A-5036-17T5 3 (2002). A showing of an impaired ability to control sexually dangerous behavior

will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment

of R.F., 217 N.J. 152, 173-74 (2014).

At an SVPA commitment hearing, the court must address the offender's

present "serious difficulty with control over dangerous sexual behavior."

W.Z., at 132-33. To commit or continue the commitment of the individual to

the STU, the State must establish by clear and convincing evidence that it is

highly likely the individual will sexually reoffend within the reasonably

foreseeable future. Id. at 133-34; see also R.F., 217 N.J. at 173. Because

commitment under the SVPA is based on "present serious difficulty with control

over dangerous sexual behavior," the "annual court review hearings on the need

for continued involuntary commitment" require assessment of "fresh

information concerning the committee's dangerousness." W.Z., 173 N.J. at 132-

33.

On this appeal, our review of Judge Freedman's decision is extremely

limited. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)

("The scope of appellate review of a trial court's decision in a commitment

proceeding is extremely narrow."). We will disturb his decision only where

there was a clear abuse of discretion, and "it is our responsibility to canvass the

A-5036-17T5 4 record, inclusive of the expert testimony, to determine whether the findings

made by the trial judge were clearly erroneous." In re Civil Commitment of

W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010).

In light of his expertise in handling these cases, "[w]e must give the 'utmost

deference' to [Judge Freedman's] determination of the appropriate balancing of

societal interest and individual liberty." Ibid. (citation omitted).

On appeal, P.P. contends the State failed to show by clear and convincing

evidence that he remains a sexually violent predator. He asserts the evidence

presented by the State did not support the judge's conclusion that he "suffers

from mental abnormality and a personality disorder that individually and in

combination predisposes him to engage in acts of sexual violence," nor the

conclusion that if released, "he would have serious difficulty controlling

sexually violent behavior."

Following our review of the record, we conclude P.P.'s arguments lack

substantive merit. Judge Freedman correctly applied the standards for continued

commitment to the evidence adduced at the 2018 review hearing. The testimony

of the State's experts clearly demonstrates P.P. continues to have mental

abnormalities that pose a serious danger that he will sexually reoffend if released

from the STU. Judge Freedman found both experts to be credible and

A-5036-17T5 5 uncontradicted. The judge also considered and rejected P.P.s claims that he is

"not attracted to children," and that he "was just massively unlucky." We give

deference to trial judges' findings based upon their "opportunity to hear and see

the witnesses and to have the 'feel' of the case." In re Civil Commitment of R.F.,

217 N.J. 152, 174 (2014) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Affirmed.

A-5036-17T5 6