October 9, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF L.C. SVP-422-06.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-422-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Lisa and Lihotz.
Appellant, L.C., appeals from Judge Perretti's October 16, 2006 order continuing his civil commitment in a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the judge erred in continuing his commitment because the State failed to prove by clear and convincing evidence that he was subject to continued commitment as a sexually violent predator. In essence appellant contends there was insufficient basis for the judge to credit the testimony and opinion of the State's psychiatrist.*fn1 We reject this argument and affirm substantially for the reasons set forth by Judge Perretti in her oral opinion of October 16, 2006.
Appellant is now fifty-four years old. In 1985, appellant's nine-year-old daughter, V.C., revealed that appellant had been sexually assaulting her on an ongoing basis during her weekend visits with him. Defendant and V.C.'s mother were divorced. Appellant admitted to law enforcement authorities that he engaged in this conduct with his daughter for about one year. He acknowledged performing oral sex on her and inserting objects into her anus, under the guise of playing doctor. He admitted experiencing orgasm on many occasions, and said he viewed his daughter as his lover, who took the place of his wife.
Appellant also informed the police of many other victims of his sexual improprieties. In all, he identified sixteen other victims, all females between the ages of five and fourteen years. He provided specific information about them and about his sexual improprieties with them. He acknowledged that he engaged in these activities with these victims over about a four-year period. He engaged in various sexual activities, which included vaginal and anal penetration. He sometimes enticed his victims by the ruse of playing doctor. He sometimes directed his victims to dress in his wife's nightgown or other clothing. He reported engaging in vaginal intercourse with some of the victims on some occasions.
Appellant selected as victims young girls known to him. He groomed the victims and their parents based upon his status as V.C.'s father. He usually engaged in the sexual activities in his home, but sometimes in the park or when he took them swimming. He viewed the sexual activity as consensual and considered the victims his lovers. He believed they enjoyed the activity and felt that no one got hurt. Indeed, he taught his daughter to ask him to make love to her.
Appellant later revealed that he recalled as a teenager and adult having urges to "walk the streets" looking for a child to be with. He roamed only familiar streets because it was not part of his method to attempt to contact a stranger child. He also later revealed engaging in improper sexual activity with victims other than the seventeen he identified to police in 1985. He acknowledged that he abused "more girls than [he] could count."
As part of the investigation in 1985, the police interviewed V.C. and the sixteen other identified victims and confirmed the sexual abuse reported by appellant. A multi-count indictment was returned and, on December 19, 1985, appellant pled guilty to six counts of aggravated sexual assault, nine counts of sexual assault, and two counts of endangering the welfare of a child. He was sentenced on April 8, 1986 to an aggregate term of forty years imprisonment with a twelve-andone-half-year parole disqualifier, to be served at the Adult Diagnostic and Treatment Center (ADTC).
Prior to appellant's anticipated release from the ADTC, the State filed a petition on January 4, 2006 seeking his commitment under the SVPA. An order for temporary commitment was entered on January 13, 2006. On April 4, 2006, the matter came before Judge Perretti for an initial commitment hearing. An order of commitment was entered on that date based upon documents moved into evidence and "[L.C.]'s stipulation that the Petitioner's proofs prove by clear and convincing evidence that [L.C.] continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment."
On October 11, 2006, Judge Perretti conducted a review hearing. The State presented the testimony of Dr. Luis Zeiguer, a psychiatrist. Documentary evidence included Dr. Zeiguer's twenty-nine page report and progress notes from the Special Treatment Unit (STU). Appellant presented no witnesses or evidence. On October 16, 2006, Judge Perretti rendered an oral opinion. Based upon her consideration of Dr. Zeiguer's testimony, which she credited, and a review of the documentary evidence, she concluded:
The evidence presented was clear and convincing. Dr. Zeiguer's testimony was uncontradicted. According to that testimony, the Respondent is predisposed to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior as appears clear from this history of a multiplicity of sexually violent acts. The psychiatrist views the Respondent's risk as highly likely to re-offend.
This is particularly disturbing. This Respondent has demonstrated no candidness or openness. And inasmuch as supervision in the community relies upon honest self-reporting, it does not appear that the Respondent, who does not allow full examination, would be difficult if not impossible to supervise in the community in his present state.
The Court is clearly convinced that Respondent continues to be a sexually violent predator. He suffers from mental disorder.
He suffers from abnormal mental conditions and personality disorder that influence his volitional, emotional and cognitive faculties in such a way as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior and is thus highly likely to recidivate if not continued for further care and treatment.
Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.
As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128.
At the commitment hearing, the State must prove a 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
The scope of appellate review of judgments of civil commitment is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. 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)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
Dr. Zeiguer based his opinions upon a comprehensive review of documents, including those related to appellant's criminal prosecution, and records of the ADTC and STU. Dr. Zeiguer attempted on three occasions to interview appellant. Twice appellant declined, but on one occasion submitted to a one-and- one-half hour taped interview. This also formed part of the basis of Dr. Zeiguer's opinions.
Dr. Zeiguer noted that appellant's treatment history at the ADTC was limited and inconsistent. Although he participated in treatment to some extent, he sometimes showed resistance and refused to participate in some programs. In his exit interview at the ADTC, when appellant was asked whether he believed he was ready to be released into society, he responded "I wouldn't trust me." Appellant acknowledged his lifelong battle with deviant sexual urges. Dr. Zeiguer concluded that appellant lacked personal responsibility and victim empathy. He is manipulative and deceptive.
Dr. Zeiguer diagnosed appellant with severe early onset Pedophilia, nonexclusive type, attracted to females; and severe Personality Disorder, NOS, with antisocial and narcissistic traits. He also noted appellant's reported alcohol dependence, apparently in institutional remission, and the report by another examiner of major depression, which was consistent with his own observations.
Dr. Zeiguer's report concluded with the following:
Conclusion and Recommendations:
[L.C.] suffers from early onset severe Pedophilia and severe Personality Disorder NOS that manifested by his crimes. He has limited empathy for other human beings, is self-centered.
He is [a] sex offender with 20 years of uninterrupted and adhered to ADTC sex offender treatment during which he does not have a record of being charged with sexual offenses; [L.C.'s] only sexual offense is the index offense, he does not have a record of known offenses after he was caught by the police, he was never caught before the predicate offense so we do not have proof that he was not or that he cannot be deterred after the 20 years time he did.
[L.C.]'s very high risk has not yet been categorically and significantly mitigated by treatment or by the aging process.
If intoxicated [he] would become more grandiose and impulsive and engage in more poorly planned offenses, he would tend to care less about getting caught.
Opinion: It is my opinion with a reasonable degree of medical certainty that [L.C.] suffers from a mental abnormality that affects his cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence. I do not believe that he meets the standard for conditional release under the SVPA.
At oral argument, appellant's attorney set forth various bases in support of his argument that Dr. Zeiguer's opinions lacked adequate foundation. Among these were that appellant fell in the lowest risk category under the Static-99, that his age is indicative of decreased risk, that he received substantial treatment at the ADTC, and that the judge did not make a correct analysis of appellant's present risk at the time of the review hearing (as opposed to his risk at an earlier time). We find these contentions unpersuasive.
Dr. Zeiguer acknowledged the validity of the Static-99 instrument. He noted that "it describes risk for large groups of people that have certain characteristics of charges, convictions, reconvictions, certain characteristics of the victims." However, Dr. Zeiguer did not consider appellant's score significant as an individual predictor of appellant's risk. See In re Commitment of R.S., 339 N.J. Super. 549 (App. Div. 2001), aff'd, 173 N.J. 134 (2002). Likewise, although Dr. Zeiguer acknowledged that advancing age, as a general proposition, corresponds with reduced risk, it was not a significant risk reducing factor in appellant's case. And, as we have stated, Dr. Zeiguer noted that appellant's participation in treatment at the ADTC was limited and that appellant acknowledged upon his release upon the ADTC and transfer to the STU that he was not a suitable risk for release into the community. Indeed, appellant stipulated that he satisfied the criteria for commitment under the SVPA. In his six months at the STU, Dr. Zeiguer noted that appellant took the floor in group session only once, but did not discuss his sexual offending behavior. Thus, he made no progress in treatment since arriving at the STU. Based upon those and other circumstances Dr. Zeiguer considered, and considering Dr. Zeiguer's recent interview of appellant while at the STU, it is clear that Dr. Zeiguer's opinions regarding appellant's risk related to appellant's current status at the time of the review hearing.
We are satisfied that Judge Perretti's findings are amply supported by the evidence and that she correctly applied the law. We have no occasion to interfere with her determination.