In the matter of Civil Commitment of L.M.R.

3-20-2013 New Jersey:

In the matter of Civil Commitment of L.M.R.
No. A-1200-12T2.

The State appeals from an October 18, 2012 order declining to continue L.M.R.'s civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38, and ordering his release from the Special Treatment Unit (STU). By order dated November 15, 2012, we stayed L.M.R.'s release and expedited this appeal. Having reviewed the record, we now affirm the order on appeal.

I.
In 2003, L.M.R. (defendant) pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to seven years in prison, half to be served without parole, plus community supervision for life (CSL) pursuant to Megan's Law. See N.J.S.A. 2C:43-6.4d. The guilty plea was based on a 2002 incident in which defendant, who was intoxicated at the time, attempted to sexually assault his paramour's fourteen-year-old daughter. L.M.R. desisted after the victim's younger brother came into the room and interrupted the assault. Defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), but was found not to be a repetitive and compulsive sex offender, in part because he had no prior arrests or convictions for sexual offenses.1

In his ADTC report, Dr. Mark Frank discounted defendant's explanation of the incident. Defendant claimed that he did not attempt to have sex with the victim but only entered her bedroom in the hope that she would tell her mother, who in turn would "call the police and have him arrested." Defendant said he wanted to get arrested because he needed substance abuse treatment. Dr. Frank noted defendant's long history of substance abuse; he recommended intensive treatment for that problem, plus psychotherapy to help L.M.R. understand why he committed the offense and avoid a recurrence. ... ... ...

Further, a sexually violent predator is one who "suffers from a mental abnormality or personality disorder that makes the person [highly] 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 (emphasis added); W.Z., supra, 173 N.J. at 133-34. Nothing in that definition suggests that a judge cannot consider a sex offender's entire situation in determining whether he needs to be confined in the STU or can be released following an initial commitment hearing. In fact, the State's reply brief concedes that "external factors like CSL may be considered by experts among the many factors examined in determining whether an offender is capable of controlling his sexually violent behaviors." We conclude that is what happened in this case. On this record, we find no error in the judge considering CSL as one of an array of factors bearing on whether L.M.R. can live in the community without being highly likely to commit additional sexual offenses.

As L.M.R. himself acknowledged to Dr. Stewart, it is very important that he refrain from drugs and alcohol when released, because those are dis-inhibitors that may make him more likely to relapse into offending. The parole supervision available through CSL is one mechanism to require regular drug testing, as well as outpatient sex offender therapy. CSL also allows the State to place appropriate limitations on where L.M.R. lives and works. And it is a particularly powerful form of supervision because failure to comply may result in L.M.R.'s arrest and incarceration. See N.J.S.A. 2C:43-6.4d.4 Moreover, as we were advised at oral argument, the same parole officers supervise offenders paroled on CSL and persons released from the STU on conditional discharge. We find nothing inappropriate in Judge Mulvihill, having found that L.M.R. was not highly likely to re-offend, nonetheless making some sensible recommendations as to the conditions of his parole supervision.

Accordingly, we vacate the stay previously entered in this matter, and order that L.M.R. be released from the STU no later than ten days after the date of this opinion. We extend the stay for that limited period to (a) permit L.M.R.'s assigned parole officer to meet with L.M.R. at the STU prior to his release, should the officer choose to do so; and (b) permit the orderly disposition of a stay application to the Supreme Court, should the State decide to promptly file such a motion. We do not, however, recommend that any further stay be granted.

Affirmed. ..Source..

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