### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF THE CIVIL COMMITMENT OF M.A., SVP

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.

_______ _______________

Submitt ed March 24, 2020

– Decided April 15, 2020 Before Judges Fisher, Gilson and Rose. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP

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- 11. Law Offices of Alan L. Zegas, attorneys for app ellant ( Alan L. Zega s and Joshua M. Nahum, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent ( Melissa H. Raksa, Assistant Attorney General , of counsel; Stephen J. Slocum, Deputy Attorney General, on the brief).
PER CURIAM In 20 09, M.A. was convicted of sexual ly assault ing , N.J.S.A. 2C:14

- 2(b), a six

- year - old boy at a rest stop on a New Jersey highway, and sentenced to a three

- year prison term subject to the No Early Release Act, N.J.S.A. 2C: 43

- 7.2

. The court also imposed parole supervision for life. As M.A.'s prison term neared NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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its end, the State petitioned for hi s 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. The trial court entered a judgm ent requiring M.A.'s commitment and has continued to the present day his commit ment as the result of numerous subsequent review hearings

. M.A., who is now forty

- two years old, claims he was , until his incarceration , a Maine resident and that he had never resided in New Jersey. In fact, it appears that his crime occurred during a trip through this State while on his way from Pennsylvania to New York . M.A. also alleges that , as his term of incarceration in state prison near ed its end, application was made to Maine officials to obtain their commitment to overseeing M.A.'s parole supervision for life. In light of these circumstances, M.A. argues that the latest order continuin g his commitment under the SVPA , entered on January 16, 2019, should be reversed . I n a single, multi

- faceted point, M.A. argues that the trial judge "failed to properly apply the civil commitment standard by failing to determine whether it is highly likel y that any re

- offense would occur in or impact New Jersey. " In short, M.A. argues t hat it is not enough that the State3 A

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prove that he is highly likely to reoffend; the State must also show that it is highly likely that he will reoffend "in New Jersey." We disagree and affirm. A criminal defendant, who has been convicted of a predicate o ffense

– as was M.A.

– may be involuntar il y commit ted under the SVPA when found to be suffering from "a mental abnormality or personality disorder that makes the person lik ely to engage in acts of sexual violence if not confined in a secure facility for co ntrol, care and treatment." N.J.S.A. 30:4

- 27.26. Annual review hearings are required to determine the need for continued commitment. N.J.S.A. 30:4

- 27.35; N.J.S.A. 30:4

- 2 7.32(a). To warrant commitment, or the continuation of commitment, the State must p rove 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 (2 002) ; s ee 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 "b y clear and convincing evidence . . . that it is highly li kely that the person . . . will reoffend." W.Z. , 173 N.J. at 132

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34 ; s ee 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 trial judge heard testimony from a psychiatrist and a psychologi st during the January 15, 2019 hearing. M.A. did not testify or provide evidence. The record reveals that M.A. has acknowledg ed that his predation on children began when he was thirteen years old. Before long, he was preying on children daily; this condu ct became a "central, secret, focus of his life." M.A. has in the past admitted to hundreds of what he referred to as "brush by" incidents where he would physically brush up against children, as th ough by accident, so he could rub his hands against their genitals or buttocks. His victims ranged from ages four to sixteen, but M.A. admitted his greatest arousal is to boys ages ten to thirteen. Among his other admissions about more significant predat ory conduct that need not be described here, M.A. has ackn owledged downloading, possessing, viewing and trading "thousands" of pictures and videos of child pornography. Testimony elicited from the State's experts revealed that while M.A. initially engaged in treatment at the STU, h e had, over the last couple of y ears, withdrawn from participation. He also continues "to minimize his offenses" and5 A

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has failed to do "some basic things" to prevent relapse. For example, M.A. continues to claim

– as he did in 20 09

– that "he can continue to have a fantasy world that in volves sex with children in his own mind and masturbate to those [images] without acting out on them despite the fact that his whole life was focused around acting on it." Both experts provided com pelling testimony

– evidence the judge found clear and con vincing

– that M.A. is highly likely to reoffend. The judge's 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

- 62 (1964)). And, so , our standard of review is narrow; we defer to the trial judge's findings because they are supported by evidence in the record . In th ose circumstances, we " 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 Ci vil Commitment of J.P. , 339 N.J. Super. 4 43, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no abuse of discretion and no reason to second

- guess the judge's fact findings. Instead, we conclude that all the judge's findings a re supported by testimony he was entitled6 A

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to credit, that these findings are worthy of our deference, and that the judge did not abuse his discretion in co ntinuing M.A's commitment under the SVPA. Indeed, we do not view M.A.'s arguments as questioning the judge's findings in this regard. Instead , M.A. argues that the State should have been required to additionally prove a likelihood of re

- offense " specific to the State of New Jersey." M.A. contends that a state's power to civilly commit offenders comes fr om its "parens patriae powers to protect its citizens" (emphasis added) , and, from this, he argues that th e power to commit does not turn just on a high likelihood to reoffend but is "limited to the jurisdiction of the state." The SVPA has broader applicat ion than suggested by M.A.'s argument. New Jersey's power to commit is not limited to its citizens or its borders

. In fact, t he predicate act that the State must prove need not have occurred in New Jersey. N.J.S.A. 30:4

- 27.26(a) (defining "sexually vi olent offense" as, among other thing s, "a criminal offense with substantially the same elements as any offense . . . entered or imposed under the laws of the United States, this State or another state " (emphasis added) ); In re Commitment of R.Z.B. , 392 N.J . Super. 22, 44 (App. Div. 2007) (recognizing that "cognate offenses in another state readily satisfy the SVPA"). And, the person the State seeks to have committed need no t reside or be domiciled in New Jersey. See N.J.S.A. 30:4

- 31 (declaring7 A

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that "[a] n onresident of this State may be committed to a mental hospital in this State in the same manner as residents may be admitted and committed"). It is enough that there be som e nexus between this State and the offender or the predicate offense to allow applic ation of the SVPA to a particular individual . We need not presently fix the lawful jurisdictional reach of the SVPA here because the predicate act that led to M.A.'s commi tment was committed within our borders , thereby providing for New Jersey a legitimat e interest that would satisfy any constitutional concern s about the SVPA's jurisdictional reach in t his case

. W hile it may be true that M.A. was not a New Jersey resident when he committed the predicate act , and while it may also be true that M.A. has no present intention to reside in New Jersey once released, the power to commit authorized by the SVPA i s not limited to New Jersey residents

. That t he predicate act occurred here is enough to allow our courts to fairly and constitutionally commit or continu e to commit a nonresident so long as the SVPA's requirements are met

. M.A. , in fact, recognizes that "residency is not determinative of New Jersey's rights to pursue com mitment under the SVPA," but he argues it should be a factor when a court considers "whether a reoffense is likely to cause a threat8 A

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to the public safety and health of those in the state " (emphasis added). 1 To be

sure, a committe d person 's proposed locale and living arrangements if released may have some bearing on a judge's determinatio n when periodically reviewing the committe d person 's circumstances and the need for further commitment. B ut we see nothing in the evidence adduced at the hearing that woul d support the finding urged by M.A. in this appeal. Instead, M.A.'s arguments about territorial concerns w ere raised in the trial court by way of a motion denied on November 14, 2018 , before the review hearing took place. As noted , M.A. did not testify nor present evidence at the hearing, so no record was made at that hearing to support the legal arguments M.A. presents in this appeal. Moreover , M.A.'s notice of appeal identifies onl y the January 16, 2019 order that continued his commitment , not the November 14, 2018 order , which denied his motion to "terminate civil commitment," when th e territorial argument was posed. Even if we were to exercise our discretion to consider the argument despite M.A.'s decision not to seek review of the November 14, 2018 order , we observe that the trial judge denie d that motion fo r

1 In support, M.A. cites to an unpublished opinion of this court, a s well as In re Civil Commitment of Richards , 738 N.W.2d 397 (Minn. App. 2007), which considered the impact of deportation proceedings commenced against the committed individual. In neither case did the court view that circumstance as posi ng a limitation on the court's power to commit.9 A

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reasons expressed in an oral decision, and M.A. has not included a transcript of that decision in the record on appeal. So, while we have rejected M.A.'s argument about the territorial reach of the SVPA and the contention that the
State prove that M.A. be highly likely to reoff end "in this state" as if there w ere support for the factual premise on which M.A. bases these contentions, in fact the record on appeal is silent in that regard since M.A.'s plans upon release were
not adduced at t he hearing

. To the extent we have not ad dressed any other argument raised by M.A. in this appeal, it is because we find any such argument to have insufficient merit warranting discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.