On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-150-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 26, 2007
Before Judges Cuff and Simonelli.
D.Z.L. appeals from the January 31, 2007 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument, D.Z.L. argued that the State failed to produce sufficient evidence that he currently poses a danger as a result of a mental abnormality or personality disorder which makes him likely to engage in further acts of a sexually violent nature. We disagree and affirm.
D.Z.L. was committed to the STU in 2001. This court affirmed this order and the May 18, 2004 order that continued his commitment. In re Civil Commitment of D.Z.L., No. A-1185-01 (App. Div. Nov. 19, 2003); In re Civil Commitment of D.Z.L., No. A-5656-03 (App. Div. Oct. 26, 2005). Finally, on January 31, 2007, Judge Perretti ordered that D.Z.L. shall remain committed to the STU.
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," 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).
In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Aggravated sexual assault is considered a sexually violent offense. Ibid. In this case, D.Z.L. pled guilty to one count of robbery and one count of aggravated sexual assault. He had also pled guilty in 1984 to aggravated criminal sexual contact and criminal sexual contact. The latter offense was committed six days after pleading guilty to aggravated criminal sexual contact.
At the January 23, 2007 review hearing, Dr. Stanley Kern, a psychiatrist, testified that D.Z.L. suffers from paraphilia N.O.S., polysubstance abuse and personality disorder with antisocial traits. Dr. Kern testified that he based his diagnosis of paraphilia on D.Z.L.'s history of three convictions for sexually violent offenses. He opined that this conduct indicated that he is predisposed "to commit sexually violent offenses inasmuch as they influence his cognitive, emotional and volitional functioning." Dr. Kern stated that D.Z.L.'s history of substance abuse is related to but does not cause his history of sexual offenses. He acknowledged, however, that the substance abuse diminishes the ability of D.Z.L. to control his sexual urges.
Dr. Kern testified that D.Z.L. minimizes and denies the extent and significance of his offenses. Until D.Z.L. acknowledges his history and recognizes the need to confront this history, he is likely to reoffend.
Dr. Natalie Barone, a psychologist, opined that D.Z.L. was highly likely to reoffend. She based this opinion on an interview with D.Z.L., a review of his treatment records, and scores on objective tests, including the Static-99. She related that D.Z.L. scored a 7 on this test, which indicates that he presents a high risk to reoffend. She concurred with the diagnosis offered by Dr. Kern and reported that D.Z.L.'s behavior should be considered compulsive, rather than opportunistic. According to Dr. Barone, the violent nature of D.Z.L.'s prior offenses that included breaking into the victims' homes and his disrobing before he touched his victims belied the notion that either encounter was an "opportunit[y] that fell into his lap." She also opined that D.Z.L.'s personality disorder inhibits his ability to make meaningful treatment gains.
By contrast, Dr. Roger Harris, a psychologist, testified that D.Z.L. is no longer a risk to the community. He also opined that a discharge plan that included frequent urine screens for drugs and alcohol, outpatient sex offender treatment, and lifestyle monitoring would mitigate whatever risk D.Z.L. posed to the community. He, unlike Dr. Barone, believed that D.Z.L.'s prior offenses should be characterized as opportunistic behavior fueled by substance abuse.
Judge Perretti found that the State had established by clear and convincing evidence that D.Z.L. continues to be a sexually violent predator and subject to continued involuntary civil commitment at the STU. She determined that his abnormal mental conditions affect him cognitively, volitionally and emotionally "so as to predispose him to commit sexually violent acts." The judge further found that D.Z.L. has substantial difficulty controlling his sexually violent behavior, ...