January 15, 2008
IN THE MATTER OF CIVIL COMMITMENT OF C.P. SVP 290-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 290-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2007
Before Judges Yannotti and LeWinn.
C.P. appeals from an order entered by Judge Serena Perretti on June 26, 2007, which continued his civil commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.
According to the record in this case, C.P. has been convicted of two serious sexual offenses. The first occurred on January 30, 1984, when C.P. approached a woman in a tavern.
After she rejected his advances and left the bar, C.P. followed the victim and forced her car off the road. C.P. placed the victim in his vehicle, where he choked her and threatened to kill her. C.P. then drove the victim to a deserted street and directed that she perform oral sex upon him. C.P. vaginally raped the woman. Thereafter, C.P. drove the victim to his residence. In the car, C.P. vaginally raped the victim three more times, and again forced her to perform oral sex upon him. C.P. took the victim into his residence. He informed her that he intended to bind her and keep her confined in the basement for three days.
On March 22, 1984, C.P. pled guilty to kidnapping, the making of terroristic threats, and aggravated sexual assault. C.P. was sentenced to twenty years at the Adult Diagnostic Treatment Center (ADTC). He refused sexual offender treatment at the ADTC and was transferred to another correctional facility. C.P. was released on November 15, 1994.
Approximately two years later, on October 8, 1996, C.P. committed the second serious sexual offense. On that date, C.P. contacted a masseuse who had placed an advertisement in a newspaper and arranged for the masseuse to come to his home. The woman was giving C.P. a massage when he took a knife out from under a pillow and jumped on her back. C.P. tried to place a sock in the woman's mouth and then proceeded to choke her. He asked the woman whether she had ever had anal sex, and she replied that she had not. A struggle ensued, and the victim's hand was cut. She required forty-seven stitches and plastic surgery to repair her hand.
On November 3, 1997, C.P. pled guilty to aggravated assault and attempted aggravated sexual assault. He was sentenced on February 6, 1998 to two concurrent, nine-year terms of incarceration, to be served at the ADTC. C.P. was scheduled for release on January 4, 2003.
On December 10, 2002, the Attorney General filed a complaint seeking C.P.'s civil commitment under the SVPA. The court entered an order on December 20, 2002 temporarily committing C.P. Following a hearing, the court filed an order on May 14, 2003, which stated that it had determined by clear and convincing evidence that C.P. was a sexually violent predator in need of civil commitment in a secure facility for control, care and treatment.
The court thereafter held review hearings and entered orders on May 5, 2004, and August 10, 2006, continuing C.P. commitment under the SVPA. This appeal arises from an order entered on June 26, 2007, which continued C.P.'s civil commitment under the SVPA. The order was entered following a review hearing that took place on May 30, 2007 and on June 5, 2007.
At the review hearing, the State presented testimony from Dr. Natalie Barone, the clinical psychologist who prepared the report on behalf of the Treatment Progress Review Committee (TPRC). The TPRC diagnosed paraphilia NOS; sexual sadism; alcohol dependence; marijuana and cocaine abuse; and anti-social personality disorder.
In her report, Dr. Barone stated that sexual sadism is "a relatively rare and very dangerous psychosexual disorder." A "substantial amount of intensive treatment" is required to treat the disorder. She noted that "the TPRC strongly believes that [C.P.] has a significant amount of work left to do in treatment before discharge planning should even be considered." Dr. Barone also wrote that while C.P. is in Phase 4 of treatment, "this should not be interpreted as an indication that a recommendation for discharge is imminent in the near future."
Dr. Barone testified that, from a clinical perspective, there is "really very little doubt" that C.P. is a sexual sadist. She explained that C.P. has admitted his sadistic sexual arousal pattern. He has experienced sadistic fantasies since he was a teenager, and there were elements of sexual sadism in his sex offenses.
Dr. Barone said that C.P.'s "dysthymic" disorder "is a long continuum of depression" that is a "trigger" to his offending sexually because, when depressed, C.P. has a low self-esteem and questions his own masculinity. He "feels the need to act out sexually to prove his masculinity." C.P. suffers from antisocial personality disorder, which "renders a sex offender at a very high level of risk for sexual recidivism, particularly when you add in a high degree of psychopathy." Dr. Barone asserted that C.P. possesses "significant psychopathic traits as part of his personality structure."
Dr. Barone added that C.P. was in Phase 4 of treatment. The treatment team had recommended placement in Phase 3, but the TPRC concluded that C.P. should continue in Phase 4. Dr. Barone said that C.P. was working hard in treatment. However, the treatment team was concerned that C.P. continued to engage in "minimization" and he was reluctant to discuss certain details of his offenses. Dr. Barone said that if C.P. remains "at a standstill" in treatment, perhaps a demotion to Phase 3 might be warranted in the future.
The State also presented testimony by Dr. Michael R. McAllister, who prepared a report of his psychiatric evaluation of C.P., dated May 24, 2007, in which he made the following diagnoses: sexual sadism; paraphilia, not otherwise specified (NOS); history of alcohol, cocaine and marijuana abuse; depressive disorder NOS, in partial remission; and personality disorder NOS. Dr. McAllister testified that C.P. "is at an extreme risk of sexually re-offending if he were at liberty." Dr. McAllister stated that, compared to the several hundred other individuals that he has evaluated at the STU, he put C.P. among "the very gravest risk[s] and danger[s] to society."
The doctor explained that his opinion was based upon the severity of C.P.'s sexual deviancy, his ability to appear that he is making good progress in treatment when he is "hiding very, very bad things." The doctor noted that C.P. is excited and stimulated by blood. Dr. McAllister said that C.P.'s use of the knife, and his attempt to hold the victim as his prisoner, gave him serious concerns about the risk of a future offense and its potential impact upon a victim.
Dr. McAllister testified that sexual sadism differs from rape because it involves fear, humiliation and terror that are essential to sexual arousal and pleasure. He diagnosed paraphilia NOS because C.P. has a long history of making obscene and threatening phone calls and, at one point in treatment, admitted to a sexual attraction to a teenage girl. The doctor stated that C.P. had frequented and mistreated prostitutes. This also was indicative of his sexual sadism. Similarly, the offenses for which C.P. was convicted in 1984 and 1996 supported the diagnosis of sexual sadism.
Dr. McAllister also testified about his diagnosis of personality disorder NOS. He said that C.P. "has longstanding and very substantial impairments in his functioning in many aspects [of] life," as indicated by the physical and emotional abuse of his wife, his arrests and incarceration for sexual acts, as well as other offenses. The doctor noted that while C.P. fantasizes about torturing and humiliating people, he also believes that he is being tortured by others. This contributes to C.P.'s "dissembling, being evasive, [and] being untruthful with regard to his sexual offenses."
In addition, Dr. McAllister testified that C.P. suffers from depressive disorder NOS, in partial remission. The doctor noted that C.P. is depressed at times, but not other times. C.P. is not particularly depressed when he takes his medication. Dr. McAllister stated that this is a personality disorder related to C.P.'s character, and he has had the benefit of anti-depressants.
The doctor explained that C.P.'s depression relates to the risk of committing sexual offenses because this aspect of C.P.'s personality is "strongly associated" with his difficulty relating to other people. In the past, when C.P. was feeling bad and "down in the dumps," he used alcohol and/or drugs, and he was under the influence of these substances when he committed both of his serious sexual offenses.
Judge Perretti placed her decision on the record on June 26, 2007. She found that the State had presented clear and convincing evidence that C.P. remains a sexually violent predator in need of commitment under the SVPA. The judge found that C.P. suffers from an abnormal mental condition and a personality disorder that impact his volitional, cognitive and emotional functioning "in such a way as to predispose him to commit sexually violent acts."
The judge opined that C.P. has serious difficulty controlling his sexually violent behavior "as he has established by re-offending in an extraordinarily violent fashion after having been confined for a first sexual offense involving extraordinary violence." The judge concluded that C.P. "is highly likely to sexually re-offend in the reasonable future if not continued for further care." The judge entered an order on June 26, 2007, continuing C.P.'s civil commitment. This appeal followed.
The scope of our review of orders of commitment entered pursuant to the SVPA is narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We accord give the "utmost deference" to the judge's commitment determination. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Moreover, we must defer to the findings of facts of the trial judge unless those findings are so manifestly unsupported by or are inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
We have carefully considered the record in light of C.P.'s arguments and the criteria for civil commitment under the SVPA. We are convinced that the record fully supports the judge's finding that C.P. remains a sexually violent predator in need of commitment under the SVPA. We therefore affirm substantially for the reasons stated by Judge Perretti in her decision on the record. R. 2:11-3(e)(1)(A). We add the following.
C.P. argues, however, that the judge erred by granting the State's motion to bar his expert Dr. Jeffrey Singer from testifying at the hearing. C.P. seeks a remand for a new hearing. We are convinced, however, that Judge Perretti did not abuse her discretion by precluding Dr. Singer from testifying at the hearing.
Dr. Singer prepared a report dated June 12, 2006, which was based in part upon an exam and clinical interview with C.P. that occurred on May 5, 2006. Concerning the interview, Dr. Singer wrote that C.P. "did not demonstrate an over-reliance on any particular psychological defense such [as] denial, minimization, or rationalization." The doctor observed that C.P.'s "impulse control, frustration tolerance, and [his] ability to delay gratification" were "strongly intact."
According to Dr. Singer, C.P. stated that he is subject to community supervision for life, and he expected to be wearing an ankle bracelet if released. C.P. told Dr. Singer that he would live with his brother and sister-in-law, and would attend meetings to deal with his substance abuse. C.P. also said he would attend professional outpatient sex offender specific treatment. Dr. Singer wrote, "[C.P.'s] presentation seemed indicative of a high likelihood of being compliant with treatment recommendations and discharge stipulations."
Dr. Singer made the following diagnoses: sexual sadism; alcohol dependence, in full institutional remission; cannabis abuse, in full institutional remission; and personality disorder NOS, with antisocial and narcissistic features. Dr. Singer opined that:
Although Sexual Sadism may appear to best fit [C.P.'s] diagnosis, the pejorative valence of such a label can automatically cause an overly negative bias. Such biases are especially activated and influential when making decisions under conditions of uncertainty, i.e. what is the risk of sexual reoffense? Therefore, [C.P.'s] functional impairment should remain the focus of attention.
There is convincing psychological evidence that the current functional impairment of [C.P.'s] diagnosis falls below the statutory threshold. Firstly, [C.P.'s] level of psychopathy is in the low range. Psychopathy is a robust predictor of future sexual recidivism. Psychopathy is also likely positively correlated with sexual sadism. [C.P.'s] Treatment Team has noted consistency of his sex offenses with official versions, empathy, remorse, and satisfactory homework completion. In short, [C.P.] is likely benefiting from a treatment effect. The treatment effect can be strongly inferred from his impressive interview presentation and having passed two polygraph examinations. One of the two polygraphs addressed sadistic masturbatory themes. Furthermore, [C.P.'s] advancing age also reliably mitigates risk. Lastly, Community Supervision for Life will help manage risk to an acceptable level.
The severity or functional impact of [C.P.'s] personality disorder and mental abnormalities, do not meet the level to establish a causal link to future acts of sexual violence. . . .
Dr. Singer provided another report dated May 28, 2007, which was based in part on a mental status exam and clinical interview with C.P. that occurred on May 21, 2007. Dr. Singer wrote that in the interview C.P. appeared upset because the TPRC had recommended that he be moved from Phase IV of treatment to Phase III. Dr. Singer added:
As in his [previous] interview (6/12/06), [C.P.] was asked what he had learned about himself during his treatment. He said, "I was trying to inflict how [badly] I felt about myself into another person." [C.P.] was asked to elaborate[.] [He said,] "For example, anal sex inflicts pain and is a humiliation for [the victim]. I strip her of her dignity. I now understand I cannot fill a void from something I lack from taking it from someone. It has to come from the inside out. I always felt I was the victim of everything. . . . I blamed others for everything. It was a mess." [C.P.] concluded by noting, "I can honestly say I take responsibility for myself being able to now make me feel anything. My feelings and perceptions are mine. I need to understand the past things that happened to me . . . No one can force me to think anything or act because of them. I choose to act."
In the current interview[,] [C.P.] was asked the same question. "Before I was very closed down, angry, violent with no empathy. It was all about me. If I wanted something I took it. Now the biggest thing I have done is to have empathy for myself and others; [have] consideration for others and to understand that things can't always be the way I'd like them to be. [C.P.] also reported that he does not entertain any rape-related fantasies while masturbating.
[C.P.] said that, "[t]he first major thing I have to avoid is high risk situations. First I have to abstain from alcohol; have a sponsor in AA on the outside, attend daily AA, especially for the first 90 days. Open line of communication with my sponsor, other members of my AA group and get active in outpatient alcohol counseling. Next, my family members know about my deviant cycle. They have wearing [signs]. Hopefully, they will attend a treatment team meeting. Open lines of communication with them, my parole officer, attend [an] outpatient sex-offender group in Red Bank, . . . . Also, find a therapist to have one to one a couple of times a week. I'll work it out because it's necessary."
In his report, Dr. Singer opined that C.P.'s then-current "functional impairment" fell below the threshold required for commitment under the SVPA. The doctor wrote that C.P.'s risk for sexual offense recidivism is within the low to moderate range. He asserted that, "with an appropriate discharge plan, [C.P.] is more likely to not . . . commit another sexual offense and [he] does not meet the psychological criteria as a SVP."
At the review hearing, Dr. McAllister testified that he was unable to interview C.P. for his most recent evaluation because C.P. had refused to meet with him. Dr. McAllister stated that the purpose of a clinical interview with the committee is to establish or clarify the committee's diagnoses, progress in treatment, and the history. The doctor noted that in this matter, "substantial new aspects of the history were discovered preceding the examination that were important to address." Those "new aspects" were additional remarks made by C.P. on matters about which he had previously been evasive and had previously denied. The doctor said that it was important to hear C.P.'s explanations and "give him an opportunity to set the record right."
Dr. McAllister added that he interviewed C.P. in August of 2006 but wanted to see him again because he had been moved to an advanced phase of treatment. Dr. McAllister said that the question to him was whether additional historical materials had emerged that had not been previously available. Dr. McAllister stated that, at a minimum, he tried to see C.P. five times and C.P. declined to be interviewed. Dr. McAllister observed that an interview was essential to evaluate "the degree and the quality" of C.P.'s honesty.
In her decision on the record on May 30, 2007, granting the State's motion to bar Dr. Singer's testimony, the judge observed that C.P. was well aware that interviews prior to review hearings "are standard operating procedure." The judge noted that two items in Dr. Singer's report were of "grave importance." The first was the doctor's attempt to refute the diagnosis of sexual sadism. The judge found that Dr. McAllister should have been given the opportunity to interview C.P. about the underlying details of Dr. Singer's diagnosis and facts beyond those provided in the written record.
Moreover, Dr. Singer had addressed in his report conditions for C.P.'s discharge from the STU. The judge noted that Dr. McAllister made clear that it was necessary for him to conduct an interview with C.P. in order to ascertain the plans and methods that C.P. could employ "in order to cope with arousals that occur outside of this environment." The judge stated that C.P. should have afforded Dr. McAllister an opportunity to question him about relapse prevention and arousal reconditioning, and ascertain how he intended to apply those concepts in a relapse prevention plan.
The judge concluded that because C.P. had refused to be interviewed, the State was unable to counter Dr. Singer's report and testimony. She observed, "It would be manifestly unfair for the committee to tilt the playing field in his favor and leave the court powerless to remedy that situation."
We are satisfied that the judge properly exercised her discretion by barring Dr. Singer's testimony. As the judge observed, a committee should not be able to rely upon an expert's favorable report, while denying the State's expert an opportunity for an interview that is essential to properly address the opinions of the committee's expert.
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