On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-121-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Cuff and Simonelli.
B.K.W. appeals from the October 10, 2006 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.
B.K.W. was adjudicated a sexually violent predator and committed to the STU on January 24, 2001. His commitment continued pursuant to the orders of August 21, 2002 and August 5, 2003. We affirmed these orders. In re Civil Commitment of B.K.W., No. A-0626-02T2 and No. A-0340-03T2 (App. Div. December 13, 2004). B.K.W.'s commitment continued after review hearings on April 22, 2005 and October 19, 2005. On October 10, 2006, Judge Perretti ordered B.K.W. to 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 it is highly likely 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).
At the October 6, 2006 review hearing, Pogos H. Voskanian, M.D., a psychiatrist, testified B.K.W. suffers from:
Paraphilia, NOS, opiate dependence in institutional remission, alcohol dependence in institutional remission, history of marijuana abuse, antisocial personality disorder, amblyopia . . . and problems with the legal system for stressors.
He also testified B.K.W. lacked empathy or remorse, was defensive, continually denied his sexual pathology, blamed the system and his victim and failed to move beyond Phase Two treatment due to his lack of motivation and commitment to his treatment program. Dr. Voskanian stated, "Instead of concentrating on treatment, [B.K.W.] is resorting to other means to resolve his civil commitment." In his report, dated September 22, 2006, Dr. Voskanian opined:
[B.K.W.] has considerable work to do in first clarifying his background history, and addressing his offenses and his sexual, characterologic and substance use related pathology. He is now in Phase 2 of treatment but so far had [sic] not demonstrated a measurable progress other than attendance to his groups.*fn1
Dr. Voskanian concluded B.K.W. presently suffers from a mental abnormality or personality disorder that affects him emotionally, cognitively and volitionally as to predispose him to sexual violence. The doctor also concluded B.K.W.'s risk to reoffend sexually, if not committed, "remains high, at the same level as before commitment."
In her decision, Judge Perretti emphasized B.K.W.'s "treatment notes cause substantial concerns about [his] participation in treatment here at STU. In particular, there is substantial indication of lack of significant participation in substance abuse therapy."*fn2 She stated the notes indicated B.K.W.'s treatment team believed that he may be "skating by, hoping to get out like he did last time without modules, polygraph, et cetera"; he failed to participate in both substance abuse treatment and AA/NA programs; and his placement in Phase Two is "an accurate ...