On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-359-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Cuff and Simonelli.
K.J.W. appeals from the March 6, 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. We affirm.
K.J.W. was committed to the STU on March 18, 2004. This court affirmed this order and the March 7, 2005 order that continued his commitment. In re Civil Commitment of K.J.W., No. A-3653-04T2 and A-3640-04T2 (App. Div. July 18, 2006) (slip op. at 29). On March 6, 2007, Judge Freedman ordered that K.J.W. 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(b). The State must prove the individual is 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence that it is highly likely that the individual will reoffend. Id. at 132-34; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
To be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26(b). Aggravated sexual assault is considered a sexually violent offense. N.J.S.A. 30:4-27.26(a). Here, after having been waived from juvenile to adult court in 1993, K.J.W. pled guilty to aggravated sexual assault while armed.*fn1 While incarcerated, he was involved in two incidents where he exposed himself and masturbated in front of a female correctional officer. For one offense, he was found guilty of making a sexual proposal or threat to a female correctional officer, and for the other he was found guilty of indecent exposure. He received disciplinary sanctions for each offense.
At the March 1, 2007 review hearing, Dr. Evan L. Feibusch, M.D., testified although K.J.W. does not appear to suffer from a paraphilic disorder, he suffers from an antisocial personality disorder, which makes it seriously difficult for him to control his behavior and places him at high risk to reoffend sexually. Dr. Feibusch opined K.J.W.'s impulsivity, failure to conform to societal norms, lack of regard for other individuals' rights resulting from his antisocial personality disorder, aggressiveness, lack of remorse, failure to acknowledge committing any of the offenses and failure to engage in treatment predispose him to sexual violence and make him a high risk to reoffend sexually.
Dr. Brian M. Friedman, Psy.D., a psychologist and member of the STU Treatment Progress Review Committee (TPRC) assigned to evaluate K.J.W., testified K.J.W. attends group sessions "pretty regularly" but does not discuss his own issues, has not advanced in therapy, and is in Phase II treatment. K.J.W. also denies committing sexual offenses or having sexual issues, does not demonstrate any significant degree of remorse, is aggressive, and has a violent history. Dr. Friedman opined he could not rule out the possibility of a paraphilia diagnosis because "there is some level of sexual deviance that needs to be addressed." He also opined K.J.W. suffers from antisocial personality disorder and his sexually offensive behavior is more driven by his antisocial personality disorder rather than paraphilia.*fn2
Judge Freedman found that the State had established by clear and convincing evidence that K.J.W. continues to be a sexually violent predator and subject to continued involuntary civil commitment at the STU. The judge concluded:
And -- if all we had was the one case, it would be a very close question. I think the two incidents in the -- in the prison took it to -- enabled the Court to find by clear and convincing evidence that he is predisposed. The -- so I'm satisfied of all this evidence to -- the credit of the testimony is two experts -- find by clear and convincing evidence that he does suffer from a personality disorder in the form of an antisocial personality disorder.
And I think there's a substantial likelihood that he also suffers -- as -- Dr. Friedman pointed out without making that finding, I find that -- his record shows that he is predisposed to engage in acts of sexual violence and if he were released, he would certainly commit other kinds of crimes and sexual conduct would undoubtedly be --be mixed in there within the reasonably foreseeable ...