January 29, 2008
IN THE MATTER OF CIVIL COMMITMENT OF A.C.S. SVP-228-03.
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-228-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2008
Before Judges Parrillo and Graves.
A.C.S. appeals from an order of July 10, 2007, that continued his involuntary civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record and the applicable law, we affirm.
The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."
N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.
[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
Individuals committed under the SVPA must be afforded an annual court review hearing to determine whether involuntary commitment as a sexually violent predator should be continued. N.J.S.A. 30:4-27.35. The purpose of a court review hearing "is to decide if confinement under the SVPA and W.Z. standards is proper." In re Commitment of K.D., 357 N.J. Super. 94, 99 (App. Div. 2003). "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with the plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130.
The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded 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).
The trial court's determination may be modified "'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.) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. denied, 177 N.J. 490 (2003).
In a prior unpublished opinion, which affirmed A.C.S.'s involuntary commitment under the SVPA, we summarized the underlying facts as follows:
Within a six-month period, between July 1983, and January 1984, A.C.S. committed a series of seven sexual assaults ending only upon his arrest. As a result, on a State indictment, A.C.S. pleaded guilty on September 18, 1984, to three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a); and one count of first-degree robbery, N.J.S.A. 2C:15-1. On November 5, 1984, he pleaded guilty to one count of assault with intent to commit rape on a federal indictment. On the federal plea, A.C.S. was sentenced to a fifteen-year prison term, and upon completion of service of that term in 1993, he was transferred to Southern State Correctional Facility to complete service of his State prison term. A.C.S. was set to "max out" his State sentence on February 4, 2002. On January 31, 2002, A.C.S. was ordered temporarily committed to the STU.
At the January 24, 2003 commitment hearing, Drs. Stanley R. Kern and Robert S. Carlson testified for the State. Dr. Kern, who interviewed A.C.S. on three occasions, diagnosed A.C.S. with personality disorder, NOS; paraphilia, NOS; sexual sadism; and alcohol and cannabis abuse. In Dr. Kern's view, A.C.S.'s use of weapons and violence against his victims after the sexual assaults had occurred was unnecessary and sadistic. Dr. Kern also found significant A.C.S.'s two serious institutional infractions - assault and possession of narcotic paraphernalia and drugs - and his refusal to transfer to the Adult Diagnostic and Treatment Center (ADTC) where he could have received sex offender therapy. Although A.C.S. made some progress into his sexually offending behaviors, he never received sex offender-specific therapy and, according to Dr. Kern, remains untreated, posing a high risk to reoffend if released into the community in his current condition. Based on his diagnoses, Dr. Kern concluded that A.C.S. is predisposed to commit sexually violent acts, has serious difficulty in controlling his sexually violent behavior, and poses a threat to the health and safety of others.
Dr. Carlson, who also interviewed A.C.S., essentially agreed with this conclusion. He diagnosed A.C.S. with an anti-social personality; paraphilia, NOS; alcohol and cannabis abuse; and behavioral problems stemming from rage and anger targeted directly at women. In Dr. Carlson's view, had A.C.S. not been arrested, his "very intense period . . . of significant violent sexual acting out" would have continued in much the same manner. And although A.C.S. may have received therapy over the years for anger management, Dr. Carlson found no evidence that A.C.S. ever received sex offender specific treatment and, in fact, found it significant that A.C.S. did not take advantage of such a program at the ADTC when available.
[In re Civil Commitment of A.C.S., No. A-0116-03 (App. Div. Dec. 30, 2005) (slip op. at 3-5).]
Three witnesses testified at A.C.S.'s court review hearing on June 13, 2007. Dr. Pogos H. Voskanian, a psychiatrist, and Dr. Brian Friedman, a psychologist, testified for the State, and Dr. Luis Roselle, a psychologist, testified for A.C.S. But the court ultimately decided Dr. Roselle's opinions were "neither persuasive nor credible," and it gave detailed reasons for rejecting his testimony.
On July 10, 2007, the court rendered an oral decision, which included the following:
Dr. Friedman's testimony clearly indicates that there are additional aspects of the respondent's sexually violent behavior which must be processed in order to clearly see the Respondent's needs and permit him to develop an adequate strategy to prevent recidivism. . . .
A significant aspect of the Respondent's criminal history, according to the psychiatrist is the excessive violence, more than necessary to accomplish rape. This indicates to the psychiatrist that the Respondent enjoys violence and hearing victims beg for their lives. This is a serious sexual pathology. The Respondent's arousal is based on fear.
An item picked out by the psychiatrist as demonstrative of his arousal is his continuing the sex act against a victim of rape who was actually vomiting during the . . . sex act being performed upon her. . . .
Dr. Voskanian describes this as "extremely deep pathology." More than simply sex offending. . . .
According to the psychiatrist this Respondent is predisposed to commit sexually violent acts because of diagnosed conditions which affect his volitional[,] emotional[,] and cognitive functioning. Dr. Voskanian diagnos[ed] paraphilia NOS which he defined. This diagnosis is based upon the Respondent's numerous sexual acts against non[-]consenting victim[s].
In addition there is the diagnosis of sexual sadism. This diagnosis is based upon the amount of violence used and the various acts described and agreed to by the Respondent.
Both in [his] report and in his testimony Doctor [Voskanian] indicates that the Respondent presents a high risk for further sexual offenses if released at this time. The combination of the resident's personality structure, substance dependence, history of numerous episodes of sexual violence and sadistic features elevate the risk of future sexual violence. . . .
The evidence presented by the State was clear and convincing. The [c]court is clearly convinced that this Respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that predispose him to commit sexually violent acts because of their influence on his cognitive[,] emotional[,] and volitional functioning. This [R]espondent has serious difficulty controlling his sexually violent acts as he has more than amply established by his 8 documented violent rapes within a 7 month period. . . .
Although the Respondent has made progress in sex offending treatment it is clear that his treatment is far from sufficient to mitigate the risk which he presents. He is highly likely to commit additional sexually violent acts within the reasonable future, if not continued in commitment under the SVP Act.
Our review of the record confirms the court's findings are supported by clear and convincing evidence, and its decision to continue A.C.S.'s commitment is legally sound. We therefore affirm substantially for the reasons stated by Judge Perretti on July 10, 2007.
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