In re Civil Commitment of SVP

• Decision Date: 19 March 2014
• Citation: 85 A.3d 979,217 N.J. 152
• Court: New Jersey Supreme Court
• Parties: In the Matter of the CIVIL COMMITMENT OF R.F. SVP 490–08.

217 N.J. 152

85 A.3d 979

In the Matter of the CIVIL COMMITMENT OF R.F. SVP 490–08.

Supreme Court of New Jersey.

Argued Sept. 9, 2013.

Decided March 19, 2014.

Nora R. Locke, Assistant Deputy Public Defender, argued the cause for appellant R.F. (Joseph E. Krakora, Public Defender, Mental Health Advocacy, attorney).

Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Puglisi and Amy Beth Cohn, Deputy Attorney General, on the letter briefs).

Justice ALBIN delivered the opinion of the Court.

Before the State can deprive a person of his freedom, either in a criminal trial or a civil commitment hearing, the State must satisfy a high standard of proof. Under the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4–27.24 to –27.38, a person previously convicted of a sexual offense can be civilly committed only if the State can establish by clear and convincing evidence that he suffers from a mental abnormality or personality disorder that makes him highly likely to commit a sexually violent offense. The experienced judges assigned to hear these cases have the difficult task of assessing expert testimony that often is in conflict, making factfindings about events described from varying viewpoints, and ultimately predicting the probability of a person's future conduct. In the balance, an individual's right to liberty is weighed against society's interest in public safety.

In this case, R.F., when he was seventeen years old, engaged in sexual conduct with two children, ages twelve and thirteen. He pled guilty in adult court to endangering the welfare of both children and was sentenced to a five-year term at the Adult Diagnostic and Treatment Center at Avenel (ADTC or Avenel). Before R.F. completed his sentence, the State petitioned to have R.F. civilly committed under the SVPA.

At an SVPA commitment hearing, the Honorable Serena J. Perretti, J.S.C., sifted through a ream of documentary evidence and heard testimony from three expert witnesses, two for the State and one for R.F. Although Judge Perretti found that R.F. committed predicate sexual offenses and suffered from a personality disorder, she concluded that the State had not proven by clear and convincing evidence that R.F. was highly likely to engage in sexually violent behavior if not civilly committed. In coming to the decision that the State had not met the evidentiary standard for SVPA commitment, Judge Perretti made specific findings of fact and ultimately placed decisive weight on R.F.'s expert. She also made clear that R.F. is subject to parole supervision for life, N.J.S.A. 2C:43–6.4; N.J.A.C. 10A:71–6.12. R.F., moreover, must also comply with a discharge plan prepared by the Special Treatment Unit (STU) where he has been civilly committed.

The Appellate Division reversed, determining that the opinions of the State's experts were “well-supported by the record and amply substantiate the State's petition for R.F.'s commitment under the SVPA.” Selecting the facts it deemed more credible, accepting the opinions it viewed more persuasive, and drawing its own inferences from the record, the panel came to a different conclusion than Judge Perretti.

The issue, however, is not whether members of the panel would have decided the case differently had they heard the case. Nor is the issue whether evidence in the record supports the opinions of the State's experts. Rather, the issue is whether sufficient credible evidence in the record supports Judge Perretti's findings. Those findings are entitled to deference, for Judge Perretti was not only intimately familiar with the case file but also had the unique opportunity to hear the witnesses, to judge their credibility, and to weigh their testimony—things that cannot be gleaned from the cold record.

Judge Perretti's determination that the State did not establish by clear and convincing evidence that R.F. was highly likely to sexually reoffend unless institutionalized is supported by sufficient credible evidence in the record. Her findings are not clearly mistaken and are entitled to deference. We therefore reverse the Appellate Division and remand for proceedings consistent with this opinion.

In light of the passage of more than five years between Judge Perretti's decision and our resolution today, we will stay the release of R.F. for thirty days to allow the State to file a new petition if there are any changed circumstances or conditions that would warrant civil commitment. On his release, R.F. will be subject to a discharge plan and parole supervision for life.

I.

R.F. was charged in two separate juvenile complaints with committing, in May and July 2004, first-degree aggravated sexual assaults against twelve-year-old A.M. and thirteen-year-old J.W. and other related offenses. R.F. was seventeen years old when the events that gave rise to the charges occurred. As part of a plea agreement, the case was waived to adult court where R.F. pled guilty to the lesser charges of third-degree endangering the welfare of A.M. and J.W., N.J.S.A. 2C:24–4(a).¹ The State recommended that R.F. be sentenced to a five-year term at the ADTC based on an evaluation that he was a repetitive and compulsive offender.

In giving a factual basis to the charges, R.F. admitted that, on separate occasions, he had “sex” with A.M. and J.W. With each girl, he touched various parts of her body and placed his “penis like in her butt,” but “it fell out.” R.F., however, insisted that the sexual acts were consensual—a position he maintained in later interviews. During the plea colloquy, R.F. stated: “I just did it because they wanted to have sex ...[.] I didn't want to do it, but I cannot say no to a girl for some stupid reason.” Nevertheless, he admitted that having sex with a minor was “wrong” and that he felt “bad.” ²

That R.F. was cognitively impaired was evident at the time of the plea. Two of three psychiatrists who examined him declared that he was not competent to participate in the proceedings. Nevertheless, R.F. declared that he wished to proceed.

After that plea proceeding, at the correctional facility where he was incarcerated, R.F. threw a box at a corrections officer and then resisted several officers and spit on them. That incident led to R.F. pleading guilty to fourth-degree aggravated assault, N.J.S.A. 2C:12–1(b)(5).

In July 2005, R.F. was sentenced on the endangering and assault charges. An evaluation submitted by the ADTC to the court indicated that, although R.F. was deemed a repetitive and compulsive offender, he was considered amenable to treatment at the program at Avenel. R.F. did not object to an Avenel sentence. However, his attorney urged the court to find as a mitigating factor that R.F. “did not contemplate that his conduct would cause or threaten serious harm,” N.J.S.A. 2C:44–1(b)(2). The defense attorney stressed that R.F. was “barely competent to understand the proceedings” and that his conduct was the result of his psychiatric disorder, his “lack of education,” and “his inability to comprehend the consequences of [his] actions.”

Although the prosecutor commented on the seriousness of all three offenses, he acknowledged that R.F. had “a lot of mental limitations” and that R.F. was “in severe need of” both sex offender and mental health treatment. The defense and prosecution agreed that the incident in the county jail was the product of “frustration” on R.F.'s part.

In imposing sentence, the court found, as aggravating factors, that R.F. had “acted out violently, or engaged in threats of violence,” and that the two young victims were “vulnerable” and “incapable of resisting his advances.” As mitigating factors the court found that R.F. was diagnosed with “mild mental retardation,” “deficits in his visual cognitive processes,” and “attention deficit, hyperactivity disorder” (ADHD), and that R.F. was classified as “neuro-psychiatrically compromised.” The court also noted R.F.'s youth and expression of remorse: “[H]e knew what he was doing was wrong, but he ... couldn't resist the impulse to engage in the unlawful activity.”

The court sentenced R.F. to concurrent five-year terms on the endangering charges, to be served at the ADTC, and to a concurrent nine-month term on the assault charge, and imposed all requisite fines and penalties.³ The court also imposed parole supervision for life, N.J.S.A. 2C:43–6.4, and noted that R.F. was subject to sex offender registration under N.J.S.A. 2C:7–2.

In May 2008, before R.F. completed his sentence, the State petitioned the Superior Court to have R.F. civilly committed under the SVPA. Attached to the State's petition were the clinical certificates of two psychiatrists, each offering an opinion that R.F. “has serious difficulty controlling his sexually inappropriate impulses, and ... is highly likely to sexually reoffend.” Based on the petition and clinical certificates, a Superior Court judge found probable cause to believe that R.F. met the standards for commitment under the SVPA. R.F. was temporarily committed to the STU, a secure facility designated for sex offenders, pending an SVPA hearing.⁴

II.

Judge Perretti presided at the commitment hearing held in December 2008. During the hearing, a number of documents were presented to Judge Perretti, including statements that had been given by A.M. and J.W. to the police. Those statements described incidents of forcible sex, including the accusation by A.M. that R.F. grabbed her by the throat and the accusation by J.W. that R.F. threatened her with a knife.⁵ J.W.'s statement, however, indicated that R.F. and A.M. were in a consensual relationship with each other. The documentary record revealed that A.M. and J.W. were not strangers to R.F. but seemingly within his circle of friends—despite their significant age differences.

R.F. self-reported his sexual...