January 2, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF A.E.F. SVP 306-03
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 306-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and LeWinn.
A.E.F. appeals from an order entered by Judge Serena Perretti on June 6, 2007, which continued A.E.F.'s civil commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). For the reasons that follow, we affirm.
On March 7, 2003, the Attorney General filed a complaint seeking A.E.F.'s civil commitment pursuant to the SVPA. At the time, A.E.F. was scheduled to complete the service of sentences imposed on July 27, 1990 for burglary, aggravated criminal sexual contact, aggravated sexual assault, criminal sexual contact; and resisting arrest; as well as a sentence imposed on April 19, 1991 for violation of probation.
The court entered an order temporarily committing A.E.F. pursuant to the SVPA on March 17, 2003. After a hearing, the court entered a final commitment order on June 19, 2003. A.E.F. appealed and we affirmed. In re Civil Commitment of A.E.F., 377 N.J. Super. 473 (App. Div.), certif. denied, 185 N.J. 393 (2005).
This appeal arises from the order continuing A.E.F.'s civil commitment following a review hearing that took place on June 5, 2007. At the hearing, the State presented testimony from Dr. Dean DeCrisce, who prepared a report dated June 2, 2007, in which he made the following diagnoses: paraphilia, not otherwise specified (NOS); opioid dependence, in a controlled environment; cocaine dependence, in a controlled environment; polysubstance dependence, in a controlled environment; and personality disorder NOS. In the report, Dr. DeCrisce opined that A.E.F. "has not adequately mitigated his high risk to sexually re[-]offend with treatment. Therefore, he remains highly likely to re[-] offend if not confined in a secure facility for control, care and treatment."
Dr. DeCrisce testified that A.E.F. was scored on the Static-99 by three different evaluators.*fn1 All scores placed A.E.F. in the category of persons at high risk of sexual re-offense. Dr. DeCrisce stated that he diagnosed paraphilia NOS because of A.E.F.'s history of sexual offenses, which include repeated instances of forcible sexual activity. The diagnosis of opiate, cocaine, and polysubstance dependence was based on A.E.F.'s history of substance abuse. The diagnosis of personality disorder NOS was based on A.E.F.'s repeated arrests, criminal behaviors, disregard for the rights of others, impulsivity, aggressiveness and disregard for the safety of others.
The doctor stated that the combination of paraphilia with antisocial personality disorder makes an individual more likely "to act out on paraphilias that would cause harm to others . . . ." The addition of polysubstance dependencies also makes an individual more likely to act out because it "decreases inhibitions." The doctor added that, "substance abuse in a seX offender is always a risk factor if not adequately treated." Dr. DeCrisce asserted that, based on his evaluation, A.E.F. continues to have serious difficulty controlling his sexual offending behavior, and the risk has not been significantly mitigated by therapy. The doctor opined that A.E.F. remains highly likely to sexually re-offend.
The State also presented testimony from Dr. Robert Carlson, who was a member of the Treatment Progress Review Committee (TPRC) that evaluated A.E.F, and prepared the TPRC's report dated May 23, 2007, concerning its evaluation. The TPRC's diagnoses were: paraphilia NOS; polysubstance dependence, in institutional remission; and antisocial personality disorder, with psychopathic traits.
In his report, Dr. Carlson noted that A.E.F. was then fifty-five years old. He has a history of violent sexual behavior that dates back to the early 1970's. Dr. Carlson stated that A.E.F.'s involvement with the STU's treatment program was "uneven." He had been participating in Narcotics Anonymous but was suspended from that program because the treatment team believed it was interfering with his sex offender treatment.
The treatment team also indicated that A.E.F. was actively involved in treatment. The team reported that A.E.F. was scheduled for a polygraph examination because the reports of his sex offense history varied substantially from the official record. According to Dr. Carlson, the TPRC determined that A.E.F. had reached "a threshold of participation" that warranted his promotion to Phase 3 of treatment.
Dr. Carlson testified that A.E.F.'s score on the Static-99 placed him in a group of persons "who are potentially high risk for sexual re-offense." He stated that the diagnosis of paraphilia NOS was supported by even "a cursory look at the criminal history." Dr. Carlson added that A.E.F. has a history of substance abuse. The doctor said that the diagnosis of antisocial personality disorder with psychopathic traits was "absolutely appropriate" based on A.E.F.'s criminal, social and developmental histories.
On cross-examination, Dr. Carlson agreed that A.E.F. would always be in a class of persons in the area of high risk "as per the Static-99." He noted, however, that at some point age would become "a more powerful mitigating factor." The doctor stated that A.E.F. was then fifty-five years old. He believed that it was "still a solid rule of thumb that once you're past age 40 or 45, depeding on the study, that there is a mitigation of risk due to age in certain subclasses of sex offenders."
Judge Perretti placed her decision on the record on June 6, 2007. The judge rejected the contention that A.E.F. no longer meets the statutory criteria for commitment under the SVPA. The judge found that the State had presented clear and convincing evidence that A.E.F. remained a sexually violent predator requiring commitment under the SVPA.
The judge found that "it is highly likely that [A.E.F.] will recidivate and commit sexually violent offenses within the foreseeable future if not continued in confinement for further care." The judge based her findings upon Dr. Carlson's and Dr. DeCrisce's testimony, their reports, and the treatment records. The judge entered an order on June 6, 2007, continuing A.E.F.'s civil commitment. This appeal followed.
A.E.F. argues that the State failed to present clear and convincing evidence that he remains a sexually violent predator requiring commitment under the SVPA. He maintains that he has progressed sufficiently in treatment so that he no longer presents a high risk of re-offense. A.E.F. contends that certain statistics indicate that with age, the risk of sexual re-offending decreases. He says that the judge erred by refusing to consider these statistics in part because she believed he committed the predicate offense when he was forty-nine years old. A.E.F. asserts that he was thirty-eight years old when he committed the offense in 1989. A.E.F. contends that the matter should be remanded with directions that the treatment team prepare an appropriate discharge plain.
The scope of appellate review of civil commitmens under the SVPA is narrow. In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006) (citing In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). We must accord the "utmost deference" to the commitment determination of the reviewing judge. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing 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.
We are satisfied from our review of the record that there is no merit in the appeal and the evidence presented at the hearing amply supports Judge Perretti's findings of fact and conclusion that A.E.F. remains a sexually violent predator requiring commitment under the SVPA. R. 2:11-3(e)(1)(A). We therefore affirm substantially for the reasons stated by the judge in the decision that she placed on the record on June 6, 2007. We add the following brief comments.
A.E.F. correctly points out that the judge erred when she stated that A.E.F. was forty-nine years old when he committed the predicate offense. However, that error was harmless. Viewing the record in its entirety, the testimony and evidence presented at the review hearing fully support the judge's finding that A.E.F. remains a sexually violent predator requiring civil commitment at a secure facility for custody, care and treatment.
A.E.F. also asserts that the record shows that the time has come to require the treatment team to prepare a plan for his conditional discharge from the STU. Again, we disagree. Dr. DeCrisce made clear that A.E.F. remains at a high risk of sexually re-offending, and that risk has not yet been significantly mitigated by therapy. Dr. DeCrisce stated that A.E.F. "still has some additional work to do." In his report, Dr. Carlson wrote that A.E.F. should address the inconsistencies between his statements concerning the sexual offenses and the official history, and participate in additional treatment for anger management, victim empathy, and arousal reconditioning. The record therefore shows that the time for the preparation of a conditional discharge plan has not yet arrived.