October 15, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF G.L.M. SVP-237-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-237-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Lisa and Lihotz.
Appellant, G.L.M., appeals from Judge Freedman's March 16, 2007 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 particular, appellant argues that he has made sufficient progress in his sex offender treatment to render him less than highly likely to re-offend, and he therefore no longer meets the criteria for commitment.*fn1
We reject this argument and affirm substantially for the reasons set forth by Judge Freedman in his comprehensive oral opinion of March 16, 2007.
Appellant is now fifty-two years old. He is the subject of two convictions for sexual offenses perpetrated against three victims. On October 24, 1980, appellant interacted with a nineteen-year-old stranger. He pulled out a knife and directed her to go into her house with him. He attempted to engage in vaginal intercourse with her but was unable to obtain an erection. He forced her to perform fellatio upon him, after which he threatened that if she reported the incident he would return and cause her harm.
On November 24, 1980, appellant accosted a twenty-one-year-old acquaintance. At knife point, he again unsuccessfully attempted to engage in forced vaginal intercourse. He then masturbated in front of the victim. The victim reported that appellant had engaged in a similar act with her four to five months earlier, but she failed to report it.
Appellant pled guilty to one count of first-degree aggravated sexual assault and one count of second-degree attempted aggravated sexual assault with respect to these incidents. He was sentenced on July 2, 1981 to fifteen years imprisonment, to be served at the Adult Diagnostic and Treatment Center (ADTC). Appellant began serving his sentence at the ADTC, but, by 1986, he persistently refused to participate in treatment. As a result, in 1987, he was transferred out of the ADTC and served the remainder of his sentence in general population. He was released on December 17, 1990.
Seven months later, on July 19, 1991, appellant committed the predicate offense. He was living in a household in which he had custody of his fourteen-year-old niece. While alone with her, he grabbed her, pulled down her pants, threw her to the floor and forcibly engaged in vaginal intercourse with her. The victim eventually was able to push appellant off of her. She ran into the bathroom to wash her genital area, after which she ran to the kitchen and armed herself with a kitchen knife. Appellant attempted to restrain her from leaving, but she succeeded, cutting appellant's hand in the process, and was able to run to a neighbor's house and report the crime.
On November 18, 1992, appellant pled guilty to first-degree aggravated sexual assault. Appellant was examined psychologically and determined to be ADTC-eligible, but he expressed his refusal to serve his sentence there. The judge acceded to appellant's wishes and directed that he serve his sentence in general population. Appellant was sentenced to sixteen years imprisonment with a six-year parole disqualifier.
In anticipation of appellant's likely release, the State filed a petition in March 2002 seeking his commitment under the SVPA. An order for temporary commitment was entered on March 21, 2002. Appellant has remained confined at the Special Treatment Unit (STU) since then. In addition to his initial hearing, he has been the subject of five review hearings. On two occasions, appellant stipulated his eligibility for continued confinement. On two other occasions, after contested hearings, continuing commitment orders were entered and appealed to this court. In our opinion of June 21, 2004, A-3538-02T2, we affirmed the December 4, 2002 order of continuing commitment. By our opinion of February 7, 2006, A-6691-04T2, we affirmed the August 5, 2005 order of continuing commitment. The review hearing that is the subject of this appeal was conducted on March 13, 2007, and resulted in Judge Freedman's order of March 16, 2007, the date on which he rendered his oral opinion.
At the hearing, the State presented the testimony of Dr. Vivian Shnaidman, a psychiatrist, who testified regarding her psychiatric evaluation of appellant and her written reports, which were placed in evidence, and Dr. Brian Friedman, a psychologist, who testified concerning the Treatment Progress Review Committee (TPRC) annual review report dated July 21, 2006, which he prepared and which was also admitted in evidence. Appellant presented the testimony of Dr. Timothy P. Foley, a psychologist, regarding his evaluation of appellant, and his report, which was also placed in evidence. The judge also received other documents in evidence, including the STU Treatment Progress Notes.
All of the evaluators rendered the same diagnosis of appellant, namely paraphilia NOS (non-consent), polysubstance dependence, and Antisocial Personality Disorder with paranoid features. All agreed that appellant has participated in treatment and made progress at the STU. The area of dispute revolves around whether appellant has sufficiently progressed in treatment to render him less than highly likely to re-offend.
Dr. Foley relied heavily upon appellant's Static-99 score, which placed him in the moderate to high risk category. In Dr. Foley's view, that score, combined with the treatment appellant has received at the STU and his advancing age, render him less than highly likely to re-offend. Dr. Foley opined that appellant was suitable for a conditional discharge, with continuing supervision and sex offender treatment.
Dr. Shnaidman was of the view that appellant continues to display some deception, particularly with reference to his deviant arousal pattern. She commented that appellant should be commended for the work he has done at the STU. However, she noted that he has only advanced to Phase 3 in treatment and the history of his disorders and self-reports do not suggest he has reduced his risk of future sexual deviance.
Dr. Friedman explained some highlights of the TPRC report. He said appellant's deviant arousal pattern is one area appellant has not addressed in sufficient depth. He said the TPRC and appellant's treatment providers agree that appellant requires further work in this area. Furthermore, he was of the view that appellant should complete the Relapse Prevention-3 Module and enroll in the Victim Emphathy Module in order to focus on accepting full responsibility for the extent of his sexually assaultive behavior.
Dr. Friedman acknowledged that appellant had made "substantial gains" toward treatment since arriving at the STU. He noted that the TPRC unanimously agreed that appellant should remain in Phase 3, although it was anticipated that "there's still some work to do and we would certainly be willing to consider him for Phase-4 if he addresses a number of these issues prior to our next review this summer."
In addition to the sexual offenses we have described, appellant also has acknowledged a number of additional unreported sexual improprieties perpetrated against different victims. He has also committed non-sexual offenses for which he has been adjudicated a delinquent as a juvenile and convicted as an adult, dating back to his very early youth. Appellant suffers from serious medical problems. As a result of Familial Polyposis, a hereditary disease with a poor prognosis, appellant developed colon cancer, resulting in the complete removal of his colon in his early twenties, ever since which he has functioned with a colostomy bag. Appellant underwent open-heart surgery in 1966 to address a congenital heart defect. He suffers from diabetes. Appellant had a difficult childhood. His mother died, probably from Familial Polyposis, and he was abandoned by his father. He lived in various households. He was sexually abused. His poor health and unfortunate environmental circumstances in his youth have no doubt contributed to appellant's anger and low self-esteem. He has expressed the feeling that he wished his mother had aborted him, and he has expressed suicidal ideations in the past.
Judge Freedman's oral opinion consumes sixty-seven transcript pages. In it, the judge thoroughly reviewed the evidence, both documentary and testimonial. He rejected as "simplistic" Dr. Foley's approach, which relied primarily on the Static-99 score, with further consideration given to appellant's treatment and age, as a basis for concluding that appellant is less than highly likely to re-offend. The judge noted that "[t]he Supreme Court in [In re Commitment of R.S., 173 N.J. 134 (2002)] clearly indicated the Static-99 is merely a factor to be considered, not the be-all-and-end-all that Dr. Foley gives to its score. He does look at dynamic factors, but his whole basis is based on the Static and I cannot accept that."
Judge Freedman found Dr. Shnaidman's risk assessment much more persuasive. He noted that Dr. Shnaidman's conclusion that appellant continues to have a deviant arousal problem that has not been sufficiently addressed is consistent with the judge's examination of the complete record before him. The judge concluded as follows:
So, I'm satisfied to find by clear and convincing evidence that at this time because of the circumstances and the problems which exist which I have enumerated, he's not ready for a conditional discharge, as recommended by Dr. Foley. There is no dispute that he suffers from a mental abnormality and a personality disorder. There is no dispute that it predisposes him to engage in acts of sexual violence. There's no dispute that it affects him emotionally and cognitively and volitionally, as well.
The only dispute is whether he's highly likely. And I think under the present circumstances, I credit Dr. [Shnaidman]'s view that he -- he has not yet made the connection between his deviant arousal and his offending, and he needs to do that in order to be prepared to deal with that deviant arousal if it comes up once he's released.
So, I don't hesitate to find by clear and convincing evidence that at the present time he would have a serious difficulty if he were released in controlling his sexually violent behavior, including -- I've taken into account his age and physical condition, so that within the reasonably foreseeable future he would be highly likely to engage in acts of sexual violence again. And that given the nature of what he does, which is very serious, and the high propensity, he clearly, under the balancing test of W.Z., is a dangerous person in need of continued civil commitment.
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. . . . [b]y 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) (quoting 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).
We are satisfied from our review of the record that Judge Freedman's finding that appellant continues to be highly likely to re-offend and otherwise meets all criteria for continued SVPA commitment is well supported by the record, and we defer to that finding.