On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-292-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 26, 2007
Before Judges Cuff and Simonelli.
H.X.M. appeals from the October 15, 2003 order finding him subject to involuntary civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
In 1961, H.X.M. pled guilty to rape. H.X.M. was accused of choking the female victim so she would submit. He was sentenced to the New Jersey State Hospital (Ancora) for an "indefinite time" consistent with a pre-sentencing evaluation and recommendation that he be committed to a state hospital for prolonged treatment and care.
In December 1973, H.X.M. was released on parole. Approximately six months later, H.X.M. was arrested for the rape of a sixty-one year old woman. Following the attack, the victim exhibited marked redness, discoloration and swelling of the left jaw. H.X.M. was convicted of assault with intent to rape. He was sentenced to an indeterminate term not to exceed twelve years at the Adult Diagnostic and Testing Center (ADTC). Parole on the 1961 offense was also revoked.
As his term of imprisonment drew to a close, Dr. Vivian Shnaidman conducted a psychiatric termination evaluation of H.X.M. Based on this interview, Dr Shnaidman developed the following diagnostic impression: paraphilia NOS, impulse control disorder, alcohol dependence in institutional remission, antisocial personality disorder, prostate cancer in remission, and emphysema. She also concluded that he met the criteria of a sexually violent predator and involuntary civil commitment pursuant to the SVPA. Two other ADTC therapists opined that H.X.M. should be considered a high risk for sexual reoffense due to his diagnoses and the results of two commonly used tests: the MnSOST-R and the Static 99.
On December 13, 2002, a temporary order of commitment was entered. After several adjournments, the final hearing required by N.J.S.A. 30:4-27.28g was conducted on October 15, 2003. H.X.M. refused to participate in the psychiatric interview conducted in March 2003. Accordingly, Dr. Voskanian based his evaluation on prior records created and maintained throughout H.X.M.'s involvement in the criminal justice system. Similarly, H.X.M. refused to participate in interviews with Natalie Barone, a psychologist, or Luis Zeiguer, a psychiatrist. They also prepared their reports based on a review of H.X.M.'s records. At the hearing, Dr. Barone and Dr. Zeiguer testified that the reports reviewed and relied on by them were the type of records relied on by professionals in their fields. H.X.M. also refused to attend the hearing.
Dr. Barone testified that H.X.M. presents the following diagnostic profile: Axis I, paraphila NOS; Axis II, antisocial personality disorder. She further opined that his reoffense within six months of release provided strong evidence of compulsion. She also testified that H.X.M. was unable to resist his sexual urges despite his previous hospitalization and he even continued to have sexual relationships while hospitalized.
Thus, H.X.M. cannot control his deviant sexual urges even in controlled environments with consequences.
Dr. Barone testified the sexual sadism diagnosis is evidenced by the use of much more force than was required to gain compliance from his first rape victim and from the injuries sustained by his sixty-one year old victim. Dr. Barone explained that these sadistic elements increase H.X.M.'s risk for sexually reoffending and suggest a sexual deviancy that is so ingrained that it is more challenging to treat.
Dr. Barone utilized the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), which provides information about present personality functions and any kind of psychiatric symptoms a person may be experiencing. She found that H.X.M. exhibited a moderate elevation on the psychopathic deviance scale, which suggests that H.X.M. is "somewhat impulsive, immature." Furthermore, H.X.M. has a "general orientation toward a pleasure seeking, self-gratification" and tends to be self-centered and manipulative. These results further supported her diagnosis of antisocial personality disorder.
During the Multiphasic Sex Inventory-II (MSI-II), H.X.M. admitted his voyeuristic tendencies and acknowledged that he has engaged in peeping behaviors in the past. Dr. Barone explained that voyeuristic tendencies are another type of paraphilia and the more types of paraphilia a person exhibits, the more difficult treatment becomes and the more likely that person will reoffend. Dr. Barone noted that treatment would be further challenged by the fact that H.X.M. minimizes his past sexual deviancy and uses justifications; therefore, his lack of motivation for treatment is in itself a risk factor. Dr. Barone also applied the Bumby Cognitive Distortion Scale. H.X.M. did not complete the molest scale, nevertheless, he ...