March 4, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF L.M.J. SVP #381-04
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-381-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Fuentes and Chambers.
L.M.J. was determined to be in need of civil commitment as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.48. The trial court found sufficient evidence warranting his continued commitment at his first annual review hearing. L.M.J. now appeals arguing that the State failed to establish, by clear and convincing evidence, that he was in need of commitment.*fn1 We disagree and affirm.
The State presented expert psychiatric testimony and reports from psychiatrists and psychologists who were familiar with L.M.J.'s sexual criminal history. These witnesses also reviewed L.M.J.'s criminal and medical histories, and personally met with him to form a clinical assessment of his risk for re-offending. The State's experts opined that L.M.J. suffered from a mental defect that rendered him a danger to society if not committed for sex offender and substance abuse treatment.
We gather the following facts from the evidence presented at the commitment hearings.
L.M.J. has a long history of sexual misconduct. On January 30, 1996, M.M., a fourteen-year-old girl, reported to the East Orange Police Department that L.M.J. had sexually abused her repeatedly for over six years between 1987 and 1994. According to M.M., L.M.J. told her that he would kill her if she told anyone about the sexual abuse. The State charged L.M.J. with sexual assault, terroristic threats, and endangering the welfare of a child. On December 13, 1996, L.M.J. pleaded guilty to sexual contact in the third degree, was sentenced to five years probation, and was required to undergo drug and alcohol counseling for his apparent addiction to crack cocaine.
On October 14, 1999, a woman named R.W., age twenty-four, reported that L.M.J. grabbed her while she was walking on a street in Newark; struck her; tied her hands and feet; and drove R.W. to a parking lot. While in the parking lot, L.M.J. held a knife to R.W. and forced her to submit to sexual intercourse. R.W. was able to escape and report this incident to the police.
L.M.J. was arrested on October 20, 1999, and charged with aggravated sexual assault, aggravated assault, terroristic threats, criminal restraint, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. He pleaded guilty to second degree aggravated sexual assault and third degree criminal restraint and was sentenced to five years incarceration without the possibility of parole. The remaining charges were dismissed.
Although not resulting in a criminal conviction, L.M.J. was also charged with kidnapping based on a September 5, 1988, report by a woman named P.C., charging that L.M.J. had kidnapped her and had forced her to engage in oral and vaginal sex. The grand jury returned a no bill and the matter was dismissed on June 8, 1989.
On October 3, 1994, L.M.J. was arrested and charged with aggravated sexual assault, kidnapping, terroristic threats, robbery, unlawful possession of a weapon, possession of a weapon for unlawful purposes, and resisting arrest. These charges were filed against him after a woman alleged that he had sexually assaulted her at knifepoint. When police officers attempted to arrest L.M.J., he kicked, punched, and scratched the arresting officer. L.M.J. pleaded guilty to resisting arrest and received a suspended sentence of three years. The other charges were dismissed.
On October 8, 2004, the State filed a petition for L.M.J.'s involuntary civil commitment under the SVPA, supported by the required clinical certificates of two doctors attesting to L.M.J.'s eligibility for commitment. At the initial hearing, Judge Freedman found probable cause that L.M.J. was a sexually violent predator, and ordered him temporarily committed pending a full hearing.
At the hearing the court heard testimony from Dr. Natalie Barone, Psy.D., a psychologist employed at the Special Treatment Unit where L.M.J. was civilly committed.*fn2 Dr. Barone was familiar with L.M.J.'s case and had evaluated him on February 3, 2005. Her report of this evaluation was presented and admitted in evidence by the court. L.M.J. did not present any witnesses on his behalf.
Noting L.M.J.'s history of sexual misconduct, Dr. Barone testified that, although certain offenses did not involve a conviction or even an indictment, they were nevertheless relevant in assessing his likelihood to re-offend. The fact that L.M.J. was on probation was also highly significant in determining his risk of re-offending. According to Dr. Barone, violating probation was indicative of L.M.J.'s "difficulties with volitional control" and evidenced that "legal repercussions do not deter him."
In her opinion, L.M.J. possessed a deeply ingrained sexual pathology, as evidenced by the twelve-year span of his sexual offenses. This long-term exhibition of deviant behavior created a higher risk of L.M.J. re-offending. Similarly, most patients' expressions of antisocial personality traits tend to gradually dissipate as the patient ages beyond forty years. Here, the fact that L.M.J. was past fifty and still exhibiting severe antisocial behaviors indicated a strong likelihood that he would continue to do so.
Dr. Barone further testified that L.M.J. made inconsistent statements regarding his prior sexual misconduct, in some instances even flatly denying that it ever occurred. Standard test results also placed L.M.J. at a "high level of risk" of re-offending.
Dr. Barone testified that L.M.J. was tested using a Bumby Cognitive Distortion Scale test. This test evaluates a patient's perceptions regarding rape and child molestation. According to Dr. Barone, test results demonstrated a "quite distorted" belief system regarding rape and child molestation, and an "underlying rage and disdain towards women."
At the initial hearing, the court also heard testimony from psychiatrist Dr. Luis Zieguer.*fn3 Although Dr. Zieguer did not conduct a full evaluation of L.M.J. personally, he had spoken with him twice, and had reviewed "police investigation reports, victims' statements, report[s] of interviews held with different psychologists wherein [L.M.J.] commented on the offenses, commented on the charges, gave his own version of events, [and] the statements also that [L.M.J.] gave to the detectives."
Based on his review of these materials, Dr. Zeiguer prepared a report on L.M.J. which the court admitted in evidence.
Dr. Zieguer testified that it was standard practice to assess a patient's likelihood of re-offending on charges of sexual misconduct even though those charges did not return a conviction or an indictment. Dr. Zieger opined that: (1) L.M.J. showed no signs of concern over the consequences of future sexual misconduct; (2) L.M.J. suffered from antisocial personality disorders and was a "very high risk sex offender;" and, (3) L.M.J. was predisposed to seeking situations where he could satisfy violent and coercive sexual urges.
Based on these findings, Dr. Zieguer opined that L.M.J. posed a high risk to sexually re-offend in the foreseeable future unless confined to a secure facility for treatment. He diagnosed L.M.J. with: (1) pedophilia; (2) paraphilia NOS, non-consent; and, (3) "personality disorder with antisocial features."
Based on this evidence, Judge Freedman reached the following conclusion:
I . . . find [L.M.J.] without any question well beyond clear and convincing evidence. He's in dire need of treatment to deal with his underlying motivation, and I will, therefore, for those reasons, sustain committing him.
On February 6, 2006, L.M.J. appeared before Judge Perretti for his first annual review hearing. At the hearing, the State presented the testimony of Dr. Howard Gilman, whom, by stipulation, the court qualified as an expert in psychiatry. Once again, L.M.J. did not present any witnesses on his behalf.
Dr. Gilman had performed a one-hour evaluation of L.M.J. on January 23, 2006.*fn4 He also reviewed the various reports and records on L.M.J., including pre-sentence reports, police records, the petition for civil commitment, treatment records, and the evaluations performed by other medical and psychological assessors. Dr. Gilman's written report was admitted in evidence.
After noting L.M.J.'s history with cocaine abuse, Dr. Gilman opined that L.M.J. had not made visible signs of accepting his own need for treatment, and had thus not yet made the "rudimentary first step" in engaging treatment for his sexually violent behavior. Counsel for the State then engaged Dr. Gilman as follows:
Q: Doctor, based on your reviewing of the records and your interview with [L.M.J.], does he suffer from a mental abnormality or personality disorder which affects him either emotionally, cognitively or violitionally so as to predispose him to commit acts of sexual violence?
A: Yes. I - I diagnosed [L.M.J.] as suffering from cocaine dependence, which is currently in - in institutional remission, as well as a antisocial personality disorder. [sic] . . . .
Q: Why did you diagnose the antisocial personality disorder.
A: Well, [L.M.J.] has a long history of - of being unable to - or being unwilling to conform his behavior to social norms, to acting impulsively regardless of the consequences to others. There's a lack of empathy in terms of the effects of his behavior on others. Repeated - repeated criminal activity over - over a very long time dating back to - to his teens. So, for all of those reasons.
Q: And what are the characteristics of that disorder that's relevant to issues of sexually re-offending?
A: Well, only in that - I'm pausing. I'm sorry. It - it's important in the sense that [L.M.J.] is predisposed, if you will, to impulsive acting out behavior to gratify his own needs regardless of the consequences and regardless of their effects upon others. Put together with what we know of his sexual history and specifically his criminal sexual history, that often - or - or has expressed itself in sexual acting out in a - in - in a - generally in a - in a particular pattern but - but also in - it's extended beyond that pattern as well in terms of his sexual activity with a young girl. So, - so, his antisocial personality disorder, given his particular characteristics, places him at a high risk for sexual re-offending behavior.
Q: That was going to be my next question. Let me just ask it, Doctor. And how would you characterize his risk to sexually re-offend in the foreseeable future unless confined in a secure facility for treatment?
A: I think he's at high risk.
Thereafter, after reviewing all of the evidence presented, Judge Perretti reached the following conclusion:
There is no indication in the treatment notes that the Respondent has been adequately addressing his sex offending behavior. A treatment plan status review dated November 10th of 2005 recites, "He has spoken about his sex offense issues, but not at length or with much detail. He has also shown some difficulty integrating basic concepts into an understanding of his own circumstances."
As to Respondent's polysubstance abuse, the plan review indicates that the Respondent has made minimal progress in addressing that issue. "While he has acknowledged the role drugs played in his offenses, he has not yet participated in substance abuse treatment and he has denied having any problems with drugs or alcohol."
It is Dr. Gilman's opinion that without substance abuse treatment, the Respondent, if he were be - if he were to be released would return to substance abuse.
The evidence was clear and convincing that the Respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder[s] that affect his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent acts. He has limited ability to control his sex offending behavior and, because of his antisocial personality disorder, has very substantial difficulty controlling his impulses.
As a result of his cocaine dependence, his ability, as little as it may be, to control himself is further reduced.
As a result of the Respondent's serious inability to control his sex offending behavior, it is highly likely that he will recidivate if not confined for further care and treatment.
In reviewing a civil commitment under the SVPA, the Appellate Division's role is "exceedingly narrow." In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div.), certif. denied, 192 N.J. 296 (2007). A reviewing court will only "'reverse a commitment for an abuse of discretion or lack of evidence to support it.'" Ibid. (quoting In re Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007)). Additionally, "committing judges under the SVPA are specialists in the area, and [the Appellate Division] must give their expertise in the subject special deference." Id. at 36.
Against this standard of review, we are in complete agreement with the conclusions reached and rulings made by both Judges Freedman and Perreti, and thus affirm substantially for the reasons expressed in their oral opinions delivered from the bench.