March 14, 2007
IN RE THE CIVIL COMMITMENT OF C.S.B. SVP-102-00.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-102-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 17, 2007
Before Judges Weissbard and Graves.
C.S.B. (Mr. B.) appeals from a judgment of May 11, 2006, continuing his mandatory civil commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:27.24 to -27.38. The appeal was heard on our special SVPA calendar, with oral argument but without briefs. Having carefully reviewed the record and considered the arguments of counsel, we affirm.
This is Mr. B.'s fourth commitment hearing. In 1981, Mr. B. was tried and convicted by juries in two separate trials of aggravated sexual assaults that occurred three days apart in October 1980. In March 1981, he was sentenced on the assault charge involving a twenty-six-year-old woman to fifteen years with seven and one-half years of parole ineligibility. In August 1981, he was sentenced on the rape charge involving a sixteen-year-old girl to twenty years with a ten-year parole disqualifier, consecutive to the first imposed sentence. This second sentence was to be served at the Adult Diagnostic and Treatment Center (ADTC). At the time of the offenses Mr. B. was eighteen years old. He "maxed out" the first sentence on December 1, 1990, after serving about nine years in prison, and then began serving the second sentence. He was due to max out the second sentence in July 2000, after serving about ten and one-half years in the ADTC, when the State filed its SVPA petition.
The records suggest that Mr. B. did not gain much from his time at ADTC in terms of sex offender rehabilitation. Of course, it is inexplicable that he was not committed to the ADTC on the first imposed sentence, but only four or five months later was apparently found to be a repetitive and compulsive sex offender to justify such a commitment on the second term. Thus, he served about nine years in state prison without any sex offender specific treatment before being transferred to ADTC. In total, he was incarcerated for just about twenty years before the SVPA commitment was sought.
For a long time Mr. B. denied having committed either of the crimes. However, at some point, apparently when he was at the STU, he finally admitted to having committed the offense against the twenty-six year old, although he has been inconsistent in his explanations for the offense. He has, however, continued to deny having committed the first crime. His position, as we understand it, is that the sixteen year old identified him from a lineup and there was no corroborating evidence other than her identification. He was placed in the lineup because he had at that point been arrested for the offense against the twenty-six year old, which apparently also resulted from an identification.
Returning to the procedural posture of the case, defendant was first committed by judgment of August 2, 2000, following a hearing. His commitment was continued after a hearing on November 5, 2001. A second review hearing was held on August 5, 2002, resulting in a judgment continuing commitment, but the hearing judge set that order aside and scheduled the hearing to be held before another judge. That proceeding began on February 5, 2003, but was adjourned because Mr. B. asserted his innocence of the predicate offense, involving the sixteen-year-old victim, and sought DNA testing. Unfortunately, the prosecutor was unable to locate evidence that could be tested for DNA. The hearing resumed on November 19, 2003, and continued on December 9 and 11, 2003, resulting in an order for continued commitment on January 27, 2004. We affirmed that ruling in an opinion filed December 13, 2004. In the meantime, there had been another review hearing on May 4 and 11, 2005, with a judgment on June 24, 2005, again continuing the commitment. We affirmed that decision in an opinion filed December 19, 2005. As noted, the judgment presently under review follows a hearing on May 3, 2006, and an oral ruling on May 11, 2006.
We begin by repeating what we have said in our earlier opinions. Our scope of review is narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We give the "greatest deference" to the hearing judge and will interfere in his decision "only when the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).
Mr. B. contends that the State failed to fully comply with the last prior order of June 24, 2005. In that order, Judge Freedman, in addition to continuing Mr. B.'s commitment, ordered his placement in phase 3 of the sex offender treatment plan. Unfortunately, the STU treatment records confirm Mr. B.'s assertion. It was not until July 29, 2005, that the treatment coordinator took note of the court order and directed Mr. B.'s placement in phase 3. Mr. B.'s complaint, however, is that even after July 29, he was not placed in any new treatment modules appropriate for phase 3. We conclude, however, that Mr. B.'s complaint is moot.
During the year between Judge Freedman's order of June 24, 2005, and the order under review, Mr. B. came under the care of a new treatment team. Unlike the prior team, the new team concluded that Mr. B. did not belong in phase 3 but only phase 2. The Treatment Progress Review Committee (TPRC) agreed. Accepting the conclusions of the experts that Mr. B. had actually regressed over the past year, Judge Freedman rescinded his prior order that Mr. B. advance to phase 3. As a result of these events, Mr. B.'s complaint about the failure of his treaters to comply with the June 2005 order is moot. We note, in any event, that it would be far outside our role as a reviewing court to order that a committee be placed in any particular phase of treatment or receive any particular treatment module, unless the failure of the professionals to do so results from consideration of a legally impermissible factor. This observation brings us to Mr. B.'s primary claim.
Mr. B. argues that the failure to move him to phase 3 and, more importantly, the opinions of the experts that he is still subject to SVPA commitment, are motivated, at least in part, by his steadfast denial of the rape of the sixteen year old. While this contention is not without support in the record, we conclude that the order of continued commitment was not based on this denial, at least to a sufficient degree to require that we confront a thorny issue.
In the May 1, 2006 report of Dr. Kern, an STU psychiatrist, which was incorporated into the hearing record, he made note several times of Mr. B.'s denial of the predicate offense. In particular, in supporting his diagnosis of personality disorder, he stated that "he still denies the charges against the 16 year old victim though he was convicted of this charge." He repeated that comment in his testimony as well, adding that as a consequence of the denial, Mr. B. "has little understanding of his offense cycle." Dr. Carlson, a psychologist, testifying on behalf of the TPRC, was clear that Mr. B.'s continued denial would not keep him "forever in phase two." Rather, his opinion was that Mr. B. needed "to take a more serious and comprehensive look at his behaviour as it relates to the first offense," rather than being preoccupied with "being a victim of the system." Thus, according to the treatment team, Mr. B.'s admission concerning the twenty-six year old is "superficial," he "minimizes impact" and shows "no remorse."
We turn to Judge Freedman's decision of May 11, 2006. With respect to Dr. Carlson, the judge accepted his testimony that Mr. B. need not admit to the predicate offense in order to move ahead in this treatment. The problem, the judge found, was not Mr. B.'s denial, but his poor participation in treatment over the prior year as reflected in treatment notes which the judge read into the record. Overall, we are satisfied that the judge provided a sufficient basis for his conclusion that Mr. B. required continued confinement, apart from the various references to his denial of the predicate offense.
Nevertheless, we add the following cautionary note. If Mr. B. remains in phase two because of his denial of the predicate offense, or his commitment is continued due to expert opinion that relies on that denial, a significant and troublesome issue will be presented. While the legal system must be bound by Mr. B.'s conviction, it is quite another thing to say, in effect, that he can never be released because his continued denial of the one offense precludes effective treatment. It might be argued that such a conclusion would lead to a nightmarish, Kafkaesque situation. On the other hand, it would be wrong to simply allow denial to provide an automatic basis for release. If that were so, any committee could secure release by denying commission of the sexual offenses.*fn1 These are difficult questions that we do not undertake to resolve at this time but may have to face at some future point in Mr. B.'s confinement if the record is more conclusive on the issue.
For now, we are satisfied that Judge Freedman understood the issue and based his decision on factors supported by the record, apart from Mr. B.'s denial, which are sufficient to support his conclusion under our limited scope of review.