On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 376-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and LeWinn.
E.Z.F. appeals from an order entered on April 18, 2007, which continued his civil commitment to the Special Treatment Unit (STU) as a sexually violent predator, pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA).*fn1 For the following reasons, we affirm.
At the April 18 review hearing, the State's expert, Dr. Stanley R. Kern, testified and presented three reports from his two interviews with E.Z.F. on March 1, and April 11, 2007, and from his attempt to interview E.Z.F. on April 9, 2007, when E.Z.F. refused to speak with him. Dr. Kern had also reviewed E.Z.F.'s treatment notes from January 2005 to the present as well as the report of the Treatment Progress Review Committee (TPRC).
Dr. Kern first addressed E.Z.F's course of treatment at the STU. The doctor noted that E.Z.F. had been in Modified Activities Placement (MAP) "for a considerable period of time" due to behavior problems evidencing poor impulse control, such as fighting and threatening a staff member. Dr. Kern referred to a statement by E.Z.F.'s therapist indicating that he "has not progressed and he makes outrageous statements and lies." On February 26, 2007, E.Z.F. swallowed several triple A batteries in a suicide attempt.
Dr. Kern found this type of behavior entirely consistent with his diagnoses of E.Z.F., namely: paraphilia not otherwise specified (NOS); impulse control disorder NOS; psychotic disorder NOS; history of alcohol and cannabis abuse; antisocial personality; and borderline intellectual functioning. Dr. Kern noted that the alcohol and cannabis abuse--self-reported by E.Z.F.--played a significant role in his assessment of E.Z.F.'s risk of reoffending sexually, because these are "disinhibiting products" which render a person "more apt to act out their impulses[.]" In April 2006, E.Z.F. refused to complete a drug assessment, which Dr. Kern opined would have been an important step in helping him receive proper treatment.
Dr. Kern based his paraphilia NOS diagnosis on E.Z.F.'s predicate offense of rape, as well as his self-reported "chronic rape fantasies" involving women and children since the age of fifteen. E.Z.F. claimed to have fabricated those fantasies in order to be placed in the Adult Diagnostic and Treatment Center (ADTC) instead of prison when sentenced on his predicate offense.
E.Z.F.'s antisocial personality disorder, according to Dr. Kern, is evidenced by his long criminal record, including violations of probation, that show his tendency to act out even when "under restrictions." The impulse control disorder diagnosis is based upon E.Z.F.'s having acted impulsively on a number of occasions, as documented in the TPRC report. The diagnosis of psychotic disorder arises from E.Z.F.'s history of treatment for various psychotic episodes including hospitalizations for suicide attempts as far back as the age of fourteen. This diagnosis, Dr. Kern opined, indicates a mental disturbance that would affect E.Z.F.'s judgment and his "relationship to his environment and the people in the environment that he may act in bizarre and unusual fashions."
Dr. Kern opined, to a reasonable degree of medical certainty, that the combined effects of E.Z.F's underlying diagnoses made it highly likely he would reoffend sexually if not confined in a secure facility for treatment such as the STU. Dr. Kern pointed to E.Z.F.'s acting out even while under "restrictions," such as his history of violations of probation, and his bizarre conduct such as swallowing batteries while confined at the STU. Dr. Kern further noted E.Z.F.'s lack of meaningful treatment as a result of his constant placement on MAP for institutional infractions. In short, Dr. Kern described E.Z.F. as "in the very early stages of treatment."
Dr. Doreen Stanzione testified as the author of the January 24, 2007, TPRC report. The unanimous recommendation of E.Z.F's "treaters" in that report was that he remain in Phase Two of treatment, the "rapport building phase." Dr. Stanzione noted that E.Z.F. has "not been doing well" in treatment. He has no understanding of his "sexual offense cycle," which she defined as the pattern that leads one to commit a sexual offense. Dr. Stanzione considered this an important concept because it helps the offender identify when the cycle begins in order to prevent its occurrence to completion.
Dr. Stanzione also noted E.Z.F.'s "numerous MAP placements" since his 2004 commitment, that have greatly impeded his ability to participate meaningfully in treatment. In E.Z.F.'s case, this impediment has been significantly exacerbated by his "emotional inability" to make a commitment to treatment. According to the TPRC report, E.Z.F. has an "unrealistic understanding of his progress in treatment" and believes he has had ...