May 1, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF D.C. SVP-175-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-175-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 18, 2007
Before Judges Cuff and Baxter.
D.C. appeals from the October 27, 2006 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. D.C. was initially committed to the STU on September 28, 2001. D.C.'s commitment has been reviewed and continued on two prior occasions.
The predicate offenses are two convictions of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1), and one count of sexual assault, contrary to N.J.S.A. 2C:14-2b, to which D.C. pled guilty in 1989. The victim was the ten-year old daughter of a friend. D.C. was sentenced to a twenty-year term of imprisonment subject to a ten-year period of parole ineligibility and was committed to the STU pursuant to the SVPA following completion of his minimum mandatory term.
D.C. has a history of sexual offenses that predate the 1989 predicate offenses. In 1964, D.C. was arrested and adjudicated delinquent for exposing himself to a seven-year old girl, removing her pants and placing his hand between her legs. In 1967, D.C. was arrested and charged with open lewdness. The victim was a seven-year old girl. He had pulled into a secluded area, removed her undergarments, exposed himself and attempted to engage in intercourse with her. In this episode, he held the child by knifepoint. He was convicted and sentenced to an indeterminate term not to exceed three years.
In 1975, D.C. was arrested and charged with assault with intent to rape and attempted rape. The victim was a physically frail young woman. D.C. was convicted and received an indeterminate term not to exceed three years. On May 21, 1980, D.C. was arrested and charged with sexual assault. The victim was a twenty-one-year old mentally challenged woman. On May 8, 1981, he was convicted of criminal sexual contact and sentenced to eighteen months probation conditioned on a six-month county jail term and was required to obtain psychiatric counseling.
Between November 1978 and August 1985, D.C. was arrested and charged with assault and battery, interfering and creating a disturbance, simple assault, terroristic threats, and sexual assault. All charges were dismissed or "no-billed," except the simple assault charge of which he was convicted.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating 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). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Since commitment at the STU, D.C. has carried the following diagnoses: pedophilia (sexually attracted to girls, not limited to family members), paraphilia NOS, nicotine and alcohol dependence, and personality disorder with anti-social features. The personality disorder is manifested by a long-term maladaptive pattern of behavior. Since his confinement, D.C. has also suffered from numerous physical ailments, including laryngeal cancer, a myocardial infarction, and a stroke. In early 2006, his physical condition suggested to staff that he should be transferred to a skilled nursing facility. By October 2006, however, D.C.'s physical condition had improved remarkably and staff had ruled out a transfer to a nursing facility.
In October 2006, Dr. Michael McAllister, a psychiatrist, reported that the Static-99 measure was 6. At this level, D.C. is considered highly likely to reoffend. Dr. McAllister also opined that "there has been no change in [D.C.'s] progress in sexual offender treatment or his motivation for such treatment. He has not made any recent attempt to further his sexual offender treatment." The record confirms that D.C. failed to attend any group sessions from February through mid-June. Thereafter, his attendance was sporadic.
At the October 24, 2006 hearing, Dr. McAllister stated that D.C.'s impulsive behavior and his unwillingness to cooperate with treatment, his lack of concern for his victims, his chronic alcohol abuse, and his history of pedophilia and paraphilia combine to predispose him to sexually reoffend. In addition, Dr. McAllister testified that he did not believe that D.C.'s age mitigated the risk. He opined that individuals who victimize children and other vulnerable persons tend to reoffend, despite their age. Thus, Dr. McAllister concluded that D.C. is at high risk to sexually reoffend, if not confined to the STU.
The Treatment Progress Review Committee (TPRC) Annual Review Report was introduced in evidence. The TPRC recommended that D.C. continue at Phase 2 of treatment, an early stage in the five stage treatment progression. Treatment team members reported that D.C. discussed some of his offenses in group but has never expressed empathy for his victims. The TPRC also reported that D.C. scored a 7 on a recent Static-99, a score considered to place him in a high risk to reoffend category.
The TPRC also reported that D.C. had made limited gains in the past year. He had made progress addressing his fantasies but was resistant to exploring details of his past offenses. He did report, however, a history of arousal to images of underage children on TV. The TPRC observed that D.C. must develop skills to reduce his risk of reoffense, including identification and development of relapse prevention measures.
Dr. Daniel Paul Greenfield, a psychiatrist, testified that D.C. is not highly likely to reoffend due to his age, health and lower levels of testosterone. He acknowledged that D.C. was making a good recovery from his heart attack and conceded that any erectile dysfunction may not eliminate all harm to others because past offenses had included fondling and digital penetration. He also conceded that recidivism rates have not been found to decline for pedophiles as much as for other sex offenders due to advancing age.
Judge Freedman found that the existence of mental abnormalities which predispose D.C. to engage in acts of sexual violence is clearly documented in the treatment records. He discounted the opinion of Dr. Greenfield and proceeded to find that D.C. is "clearly a high risk individual." Ultimately, he found that the State had proved by clear and convincing evidence that D.C. has a mental abnormality that "predisposes him to engage in acts of sexual violence . . . and that he would have, if released, serious difficulty in controlling these behaviors, which are a lifelong, ingrained preference and that he would, in fact, be highly likely to [engage in acts of sexual violence] again."
On appeal, D.C. argues that the record does not support the finding that D.C. is highly likely to reoffend. Moreover, he contends that he does not require placement in the restrictive environment of the STU. He requests that we remand for consideration of a plan for placement in a less restrictive environment. The State responds that the "least restrictive environment" argument does not apply to sexually violent predators. It further contends that the record fully supports the finding that D.C. is highly likely to reoffend, if released from the STU.
Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
Measured by this standard, the October 27, 2006 order must be affirmed. The treatment record, current psychiatric reviews and accepted tests amply support the trial judge's findings and satisfy the State's heavy burden of proof that D.C. continues to qualify as a sexually violent predator and subject to involuntary civil commitment.
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