December 28, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF J.L.N. SVP #197-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-197-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2007
Before Judges Parker and R. B. Coleman.
J.L.N. appeals from a judgment entered on May 17, 2007 continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4- 27.24 to -27.38.
J.L.N. was temporarily committed in September 2001 pending a final hearing. The evidence presented at the final hearing established that he was a sexually violent predator and he was committed pursuant to a judgment entered on April 23, 2002. The judgment was appealed and we remanded for reconsideration in light of In re Commitment of W.Z., 173 N.J. 109 (2002). After the remand hearing, J.L.N. was again committed to the STU. His commitment was continued after a review hearing in May 2003. In March 2004, the trial court ordered the STU to develop a conditional release plan for J.L.N. to include provisions for close intensive supervision, sex offender treatment, a residential placement, employment, community and family support. The STU developed the plan for gradual reintegration of J.L.N. into society and, on September 22, 2004, he was conditionally discharged.
Less than two weeks later, the State sought to revoke J.L.N.'s conditional discharge on the grounds that he had violated several of its provisions, notably by leaving the State, not reporting to parole and failing to reside at the approved residence. After hearing the evidence, Judge Freedman denied the State's petition [to rescind the conditional discharge] finding that the evidence of violation was insufficient. The judge did, however, order increased restrictions including imposing a curfew and limiting his place of residence to the marital home. A month later, at the request of his parole officer, J.L.N. was ordered to be placed on 24-hour electronic monitoring.
On April 19, 2005, the State made an ex parte application for an order to apprehend J.L.N. and return him to custody based on alleged violations of the conditional release order. Witness testimony presented by the State in support of that application included allegations that J.L.N. had beaten his wife and that his wife's safety was at risk, and that the therapist who had reported this violence to the court could also be in peril. The State contended that the physical aggression toward his wife indicated that he was again entering a sex offense cycle.
Based on that testimony, Judge Perretti granted the State's application to return J.L.N. to the STU pending a hearing. Prior to that hearing, which began on May 11, 2005, the State filed an amended petition for civil commitment setting forth in detail the factual basis for its request that J.L.N.'s conditional discharge be revoked. That amended petition was filed on April 29, 2005.
Judge Freedman heard testimony on June 15 and June 22, 2005 and rendered a decision on July 5, 2005 revoking J.L.N.'s conditional discharge and returning him to the STU.
[In the Matter of the Civil Commitment of J.L.N. SVP #197-01, App. Div. Docket No. A-6425-04T2 at 3-5 (2006).]
J.L.N. appealed from the order revoking his conditional discharge and we affirmed. Ibid. This appeal follows the May 2007 review hearing and order continuing J.L.N.'s commitment. At the May 2007 hearing, the State presented the testimony of Dr. Pogos Voskanian, M.D., a forensic psychiatrist. Dr. Voskanian examined J.L.N. on February 9, 2007 to determine whether he continued to be at risk as a sexually violent predator. At the conclusion of his report, Dr. Voskanian noted:
That [J.L.N.] is an articulate and intelligent individual, who can well formulate a pathology, fabricate a story, present it in a convincing manner, and con his treatment providers into believing him to be sincerely involved in treatment and making progress in adopting new behaviors that would decrease his risk for future sexual offenses. [J.L.N.] is only in the initial stages of sex offender treatment.
In his testimony, Dr. Voskanian indicated that he had reviewed the Treatment Progress Review Committee (TPRC) report dated February 20, 2004 and stated that the report "reinforces" his opinion that J.L.N. continues to be at risk. After reviewing J.L.N.'s treatment records and reports, Dr. Voskanian concluded "with a reasonable degree of psychiatric certainty" that J.L.N. was at high risk to sexually re-offend in the foreseeable future [b]ecause under conditional release, he violated the rules. He has a history of two serious sex offenses. He has not addressed these issues in treatment. He continually minimizes . . . . his offenses. After being released, he violated the rules and he's back in. He sees himself as a victim of the system, which indicates that he does not take responsibility for his own behaviors, which increases the risk.
Dr. Voskanian further concluded that J.L.N. would not be a good candidate for conditional release at the present time because "[h]e has a history of multiple institutional charges. When he got released, he did not appreciate that. He was violent with his wife. He left the area without letting anybody know."
The State also presented the testimony of Brian Friedman, Psy.D., a clinical forensic psychologist and a member of the TPRC. Dr. Friedman diagnosed J.L.N. as suffering from antisocial personality disorder and paraphelia N.O.S. The paraphelia N.O.S. diagnosis was provisional because of the short period of time during which the two known rapes were committed . . . . And the D.S.M. requires a six month time - six month time period of the individual experiencing those fantasies, urges or committing rapes. So, that's why the provisional is indicated.
His behavior is certainly consistent with someone who is aroused to the idea of non-consensual sex. However, again, just because of the timeframe, it's listed as provisional.
Defendant presented the testimony of Timothy Foley, Ph.D., who concurred with Dr. Friedman's diagnosis of antisocial personality disorder. In his report, Dr. Foley stated that "[a]n actuarial risk appraisal categorizes him with offenders who recidivate with a 'high' frequency. These estimates are mitigated by his treatment progress and advancing age. He appears to fall below the 'highly likely' threshold necessary for continued civil commitment." J.L.N.'s "advancing age" is now forty-five. In Dr. Foley's opinion, J.L.N. would be "less than highly likely to commit future sexual crimes." He further indicated "that a release plan with sufficient structure . . . might be beneficial for him and allow him to have a successful transition to the community." J.L.N. "is the guy who has fully known no structure in his life. Basically on the street since he was 14, then incarcerated for 25 years approximately . . . .
[H]e gets [sic] out and there wasn't sufficient structure." It should be noted, however, that J.L.N. did not present any plan for conditional release, structured or otherwise. After hearing the evidence, the trial judge rendered a decision on the record in which she reviewed the evidence presented and, with respect to the conditional discharge, noted:
It has been seen that this respondent did not comply with the conditional discharge requirements when he was in the community, and his failure led to his recommitment. His actions during his stay in the community, which resulted in his recommitment, were found at the time of his recommitment to indicate the failure of therapy up until his discharge.
The circumstances of his discharge were part of the testimony of Dr. Foley. It appears that the respondent planned to leave his wife when the conditions of his discharge had expired. The respondent and his former wife - now divorced - were married while the respondent was incarcerated. The marriage [was] not consummated until the respondent was in her home on furlough in connection with his transition to conditional release.
Dr. Foley also revealed that he learned that the respondent at the time had another girlfriend. The respondent has suggested a release plan to that girlfriend who apparently resides in Tennessee. The respondent had met this Tennessee girlfriend who had been acquainted with him in the past when he met her on a furlough, again, preparatory to his release conditionally.
Although the chronology is not clear and Dr. Foley indicates that he did not have any complete discussion of the relationship with the Tennessee girlfriend, it would appear that the respondent was already considering another woman when he agreed as part of his conditional release to reside with his wife and her family.
Thus, it would appear that the respondent was, at least, deceptive in the planning for his discharge and appears to have taken advantage of his now-divorced wife to secure his release, which he now seeks to go to Tennessee to live with his girlfriend.
It is difficult to understand precisely the inter-relationship of the respondent's plans both to live with his wife and also to have an acknowledged girlfriend in Tennessee. Nor is the chronology of these relationships made clear on this record. Suffice [it] to say that the respondent's lack of candor is clearly revealed.
These circumstances cast further doubt on any treatment effect prior to the respondent's conditional discharge.
The trial judge reviewed Dr. Friedman's diagnosis of antisocial personality disorder and paraphelia NOS, provisional, "[t]he provisional diagnosis is because of the short time between the two rapes."
The judge, referring to the TPRC report, noted that J.L.N. needs to begin presenting his sexual offenses more in accordance with the official versions. Specifically, he needs to cease presenting a semi-romanticized version of his first sexual offense . . . . He also needs to stop minimizing the violence in his index offense, including acknowledging the fear he instilled in the victim [of the second rape]. He continues to insist that the victim gave no indications of the stress or resistance, despite the obvious fact that she awakened to find a strange man in her bedroom with a knife attempting to rape her.
The judge further noted that, "it is clear that this respondent had little insight into his criminal sex-offending behavior." He "is still insisting that his rape of the former girlfriend was make-up sex that would persuade her to permit him to come back to live in her home . . . . He does, however, concede that he reminded his former girlfriend of Cookie's house, which had burned down." Cookie is the mother of J.L.N.'s child. Moreover, the second rape occurred while defendant was on bail for the rape of his former girlfriend.
The judge concluded that the State presented clear and convincing evidence that J.L.N. continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts . . . . It is clear that the respondent is highly likely to commit a sexually violent offense in the reasonab[ly foreseeable] future if not confined for further care.
At oral argument before us, defendant argued that J.L.N. was twenty years old at the time of the offenses and has committed no new offenses since that time. He maintains that the trial court's reliance on twenty-five-year-old offenses was an abuse of discretion and that his present behavior should be the focus of the rehearing.
We have carefully considered defendant's arguments in light of the record and the applicable law. We are satisfied that there was more than sufficient credible evidence in the record to support the findings of the trial judge. R. 2:11-3(e)(1)(A).
We affirm substantially for the reasons stated by Judge Serena Perretti on the record of May 17, 2007. Nevertheless we add the following comments. Defendant's argument that he has committed no new offenses in the past twenty-five years completely ignores the fact that he has been incarcerated and committed for virtually that entire period of time. The record clearly indicates that J.L.N. was resistant to treatment prior to his conditional release and that he was unable to comply with any of the conditions of his release. He absconded from the jurisdiction almost immediately after his release, failed to maintain contact with his parole officer, failed to obtain the treatment as required, engaged in deception in order to obtain the conditional release and engaged in domestic violence with his former wife. Given all of those circumstances, we see no reasonable basis for recommending consideration of conditional release in the near future.
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