On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-83-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
R.X.G.*fn1 appeals from judgment entered on January 16, 2007, finding that he is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38*fn2 . The judgment ordered that R.X.G. be committed to the Special Treatment Unit (STU) for care, custody and treatment of sexually violent predators and that a review hearing be conducted on January 4, 2008. We affirm.
R.X.G., a twenty-seven year old man, has a history of sexually violent crimes, which includes aggravated sexual assault involving three minors: T.T., a five-year old boy; J.G., a seven-year old girl; and S.H., a four-year old girl. On January 29, 1997, pursuant to a plea agreement, R.X.G. pled guilty as a juvenile to three counts of aggravated sexual assault and was sentenced to probation conditioned on completion of treatment at the Pinelands Residential Group Center. Following R.X.G.'s violation of probation, he was committed on August 6, 1998, to the Juvenile Justice Commission, New Jersey Training School for a term of four years.
On or about June 1, 2000, the State filed a petition seeking R.X.G.'s civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that R.X.G. was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. Following a final hearing on November 2, 2000, the court ordered that R.X.G. be remanded to the STU. Subsequent review hearings were held in April 2001, October 2001, May 2002, August 2003, December 2005,*fn3 and the review in January 2007, that is the subject of this appeal.
On this appeal, R.X.G. argues the State failed to meet its burden of proof because the expert's opinion was a net opinion. At oral argument, counsel for R.X.G. contended that Dr. Pogos Voskanian, the State's psychiatric expert witness, relied on the petition for commitment, rather than any other documents in the record. Based upon our careful review of the record, we are convinced the trial judge, Judge Philip M. Freedman, duly considered and weighed not only the testimony and opinion of Dr. Voskanian but also the testimony of Dr. Robert Carlson, a psychologist, who testified as a member of the Treatment Progress Review Committee (TPRC), the treatment records and TPRC reports. As Judge Freedman made clear prior to the commitment hearing, he reviewed the record relied upon and referenced by the experts and treaters "to be aware of what took place in the past" in order to better determine whether the State has proven by clear and convincing evidence that the committee will have "serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002). Judge Freedman recognized in his oral decision that "the final determination with regard to dangers lies with the court[,] not the expertise of psychiatrists and psychologists."
In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be "accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
At the January 12, 2007 hearing, R.X.G. refused to attend. He was represented by an Assistant Deputy Public Advocate. As noted, the State presented the testimony of Dr. Carlson, who is a psychologist and a member of the TPRC, and Dr. Voskanian, a psychiatrist who had examined R.X.G. Dr. Carlson testified that R.X.G. lacked any interest in participating in any modules and had poor attendance records for his treatment orientation group. At the time of R.X.G.'s evaluation, he was on treatment refusal status, thus indicating a lack of interest in participating in the treatment program.
Dr. Voskanian testified that he examined R.X.G. on December 27, 2006. Dr. Voskanian explained that R.X.G. was difficult to interview because he was vague in his answers and very slow in responding. Dr. Voskanian testified that R.X.G. denied significant parts of his history that are readily available in the record. He noted that R.X.G. attended treatment at times, but has not really participated and has gained no insight at all into his offending. Dr. Voskanian diagnosed R.X.G. with pedophilia, sexually attracted to males and females, non-exclusive. Dr. Voskanian also opined that R.X.G. suffers from antisocial personality disorder manifested by a long standing history of juvenile issues. Based on these diagnoses, he testified that he found that R.X.G. was predisposed to engage in acts of sexual violence. Explaining why he felt that R.X.G. was a high risk to sexually offend in the future unless confined or secured for treatment, Dr. Voskanian said:
Because there are multiple factors . . . he continued with defiant behaviors here at STU, he does not have insight into his behaviors, he has no remorse, and there is no reason to believe that his sexual interests or preferences have resolved.
There is also no expression of empathy that would indicate that even though his sexual preferences did not resolve, ...