IN THE MATTER OF THE CIVIL COMMITMENT OF T.F. (SVP-380-04, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2019
• Docket: A-0439-17T5
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0439-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF T.F., SVP-380-04. _____________________________

Submitted February 12, 2019 – Decided February 25, 2019

Before Judges Fisher and Suter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-380-04.

Joseph E. Krakora, Public Defender, attorney for appellant T.F. (Nancy C. Hayes, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).

PER CURIAM

T.F., who was originally civilly committed in 2004, appeals an August 10,

2017 order that 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 -

27.35. In deferring to the trial judge's fact findings, we affirm.

A criminal defendant, who has been convicted of a predicate offense to

the SVPA, may be subject to an involuntary civil commitment when found to be

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. Annual review

hearings are required to determine whether that person remains in need of

commitment despite treatment. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).

To warrant commitment, or the continuation of commitment, the State

must prove that "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 Commitment of W.Z.,

173 N.J. 109, 132 (2002). See also In re Commitment of G.G.N., 372 N.J. Super.

42, 46-47 (App. Div. 2004). In that setting, the trial 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., 173 N.J. at 132-

A-0439-17T5 2 34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App.

Div. 2003). The State met its burden here.

The record reveals that T.F. is now sixty-six years old. Between 1984 and

1991, he committed sex crimes against minors in North Carolina, Virginia and

New Jersey. He was civilly committed to the STU in 2004, where he has since

resided. His commitment has been reviewed on numerous occasions in the past,

and we have affirmed all those prior orders challenged on appeal. See, e.g., In

re Civil Commitment of T.M.F., No. A-2247-10 (App. Div. Apr. 29, 2011); In

re Civil Commitment of T.M.F., No. A-2479-05 (App. Div. Feb. 23, 2007).

At the August 10, 2017, review hearing that generated the order

challenged here, the trial judge heard the testimony of the State's expert, Dr.

Michael Kunz, and the testimony of T.F.; the parties stipulated to the judge's

consideration of the expert report of a psychologist for the State, Dr. Eugene

Dunaev, without the need for his testimony. This evidence revealed that T.F.

had not participated in any group session since being committed to the STU, nor

did he consent to an interview by Dr. Kunz for purposes of the August 2017

hearing. T.F. testified that his religious beliefs precluded or excused his

participation.

A-0439-17T5 3 Based upon the factual record presented, the judge found that the State

clearly and convincingly established those elements necessary to continue T.F.'s

commitment. His findings were "substantially influenced by [the] opportunity

to hear and see the witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State

v. Johnson, 42 N.J. 146, 161 (1964)). Consequently, our standard of review is

narrow; we will defer to a trial judge's findings when supported by evidence in

the record, "give utmost deference to the commitment finding[,] and reverse

only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377

N.J. Super. 473, 493 (App. Div. 2005); see also In re Civil Commitment of V.A.,

357 N.J. Super. 55, 63 (App. Div. 2003); In re Civil Commitment of J.P., 339

N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on

appeal, we find no abuse of discretion and no reason to question the judge's fact

findings. Instead, we conclude that all the judge's findings are supported by

testimony he was entitled to credit, that these findings are entitled to our

deference, and that the judge did not abuse his discretion in continuing the

commitment of T.F. pursuant to the SVPA.

A-0439-17T5 4 We reject T.F.'s argument that the State failed to sustain its burden and

we affirm substantially for the reasons set forth by Judge Richard F. Wells in

his thorough and well-reasoned oral decision.

Affirmed.

A-0439-17T5 5