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In re Civil Commitment of F.Z.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 14, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF F.Z.S., SVP-393-05.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-393-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2007

Before Judges Parker and R. B. Coleman.

Defendant F.Z.S. appeals from a March 23, 2007 order compelling the continuation of his treatment as a sexually violent predator at a Special Treatment Unit (STU) in Avenel. The State filed its original petition for civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, on April 6, 2005. On April 7, 2005, a temporary order for civil commitment was entered, and after a full hearing, defendant was civilly committed on August 23, 2005. He remains confined in STU as of the date of this appeal.

F.Z.S. was first convicted of a sexually violent offense in the early 1980s. Evidence indicated that he had engaged in multiple sexual acts with his stepdaughter, D.S., when she was between four and fifteen years of age. For these offenses, he was convicted of sexual assault in the second degree and sentenced to a seven-year prison term. Then, on January 27, 2005, defendant pled guilty to an accusation charging him with endangering the welfare of a child, N.J.S.A. 2C:24-4(a), a second degree offense, for which he was sentenced to five years in prison. That charge was the result of sexual acts perpetrated against a nine-year-old unrelated minor in 1997.

At the March 23, 2007 review hearing before Judge Serena Perretti, only Dr. Pogos Voskanian, whose qualifications in the field of psychiatry were stipulated, testified on behalf of the State. Because defendant refused to be interviewed by Dr. Voskanian, the doctor prepared his evaluation based on collateral sources of information identified in his report dated February 26, 2007. Dr. Voskanian rendered the following diagnosis with regard to defendant:

Pedophilia, sexually attracted to females; rule-out paraphilia N.O.S., attracted to teenagers; rule-out post-traumatic stress disorder; alcohol dependence in controlled environment; personality disorder, not otherwise specified. And he has osteoarthritis, left-sided hearing loss, history of leukemia, and numbness of hands.

Defendant has admitted to having some sexual contact with both victims of the offenses for which he was convicted, but he denies the extent of that contact. He "very occasionally" participates in group sessions, and generally fails to contribute. Defendant also refused to appear before the Treatment Progress Review Committee (TPRC), a committee comprised of psychologists employed at the STU. By reviewing his record, the committee concluded that defendant had progressed to phase two out of five possible treatment phases. Dr. Voskanian classified phase two as a beginning stage of treatment. The doctor opined that F.Z.S. still has serious difficulty controlling his sexually offending behavior and that defendant's risk to society remains high.

At the close of testimony, Judge Perretti announced her opinion from the bench.

[Defendant] has not demonstrated any knowledge of his sexual assault cycle, does not have a relapse prevention plan, and has not spoken about his offenses or his victims. Nor has the respondent submitted to any of the programmatic requirements, including sexual history questionnaire, autobiography, and personal maintenance contract. He has not completed or passed any modules since his confinement to the S.T.U. and is - - or was not in July attending any modules.

He was assigned to Criminal and Addictive Thinking Module; however, his level of participation was noted as poor. There is nothing in the record to suggest that he satisfactorily completed that module. The interview with the team at the T.P.R.C. meeting is totally consistent with their report; however, it was noted that when he comes to group, he "says nothing." They also indicated that he "has not meaningfully participated in treatment."

It is clear that this respondent, although he attends the process group, is not participating in sex offender specific therapy as offered here at this institution. He has not in any manner whatsoever reduced his risk to re-offend and remains in the same condition as he was when he was originally adjudicated as a sexually violent predator.

The evidence presented by the state was clear and convincing. The court is clearly convinced that this respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorders that influence his volitional, emotional and cognitive functioning so as to predispose him to commit sexually violent acts. He has severe difficulty controlling his sexually-violent behavior. His risk is high. He is highly likely to recidivate if not continued for further care and treatment.

Accordingly, Judge Perretti issued an order continuing defendant's commitment and scheduling a further review in one year.

For the State to have its petition for civil commitment granted, it must demonstrate that the individual in question is a threat to the health and safety of others because he "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; see In re Commitment of W.Z., 173 N.J. 109, 132 (2002) (there must be a showing that defendant has serious difficulty controlling his sexually violent behavior and is highly likely to re-offend). The State must prove all the elements of N.J.S.A. 30:4-27.26(b) by clear and convincing evidence. In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007); In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993).

On appeal, the scope of review is "extremely narrow, with the utmost deference accorded to the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). We will disturb the trial court's ruling "'only where the record reveals a clear abuse of discretion.'" In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) certif. denied, 177 N.J. 490 (2003) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

While we acknowledge that "'[c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection'" W.Z., supra, 173 N.J. at 125 (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed. 2d 323, 330-31 (1979)), we find that Judge Perretti properly exercised her discretion. The record reveals that defendant has exhibited an extreme disinterest in treatment and consequently, he has failed to make any significant progress. Under such circumstances, he remains a serious danger to society as he is highly likely to re-offend. Regardless of defendant's assertion of decreased libido due to maturing age, there is no testimony or evidence on the record to indicate a negation of his deviant sexual desires or inability to act on them. Accordingly, Judge Perretti's March 23, 2007 order of continued commitment, subject to further review one year from the date of the order, constitutes a sound exercise of judicial discretion.

The court's order is hereby affirmed.

20080114

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