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In re Civil Commitment of W.J.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 10, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF W.J.S., SVP 409-05

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 409-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2008

Before Judges Winkelstein and LeWinn.

W.J.S. appeals from the trial court's order of March 29, 2006, civilly committing him pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.37 (SVPA). He raises the following issues for our consideration:

POINT ONE: THE TRIAL COURT ERRED IN ITS ASSESSMENT THAT W.J.S. SUFFERED FROM A MENTAL ABNORMALITY PREDISPOSING HIM FROM [SIC] COMMITTING ACTS OF SEXUAL VIOLENCE IN THE FORESEEABLE FUTURE POINT TWO: THE STATE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE ALL OF THE ELEMENTS OF THE SVPA AS REQUIRED FOR COMMITMENT UNDER THE ACT.

Having thoroughly reviewed the record in this matter, we find no error. We are in substantial agreement with the findings and conclusions stated by Judge Serena Perretti in her oral decision of March 24, 2006. We affirm on the basis of that decision.

W.J.S. was convicted of sexual offenses in 1968, 1976, and 1993, involving pre- and post-pubescent children, some of whom were his own children. Following his 1993 conviction, he was found to be a compulsive and repetitive offender and was confined at the Adult Diagnostic and Treatment Center in Avenel (ADTC), pursuant to N.J.S.A. 2C:47-1 to -3.

The State moved for W.J.S.'s civil commitment under the SVPA in April 2005. At the commitment hearing, the court heard testimony on behalf of the State from Dr. Raymond Terranova, a licensed clinical psychologist, and Dr. Michael McAllister, D.O.

W.J.S. had refused to be interviewed by Dr. Terranova. Nonetheless, the doctor submitted a report, and testified, based upon his review of W.J.S.'s extensive record of sexual offenses that extended back to the 1960's; as well as W.J.S.'s treatment records that included more than fifteen hospitalizations at Greystone Park Psychiatric Hospital. He noted that W.J.S. had admitted sexually molesting all of his children. Dr. Terranova diagnosed W.J.S. with pedophilia, psychotic disorder not otherwise specified (N.O.S.), cannabis dependence, alcohol abuse, personality disorder N.O.S. with anti-social features, and borderline intellectual functioning.

Dr. Terranova's expert opinion was that W.J.S. "presents as a high risk to sexually recidivate." He acknowledged that W.J.S. had been in treatment for his marijuana abuse and had been "marijuana free" for the past thirteen years. When asked if he thought the lack of marijuana abuse would reduce the degree of W.J.S.'s risk of re-offending sexually, the doctor responded: "It's difficult to say. Perhaps." Dr. Terranova stated that, even if W.J.S.'s psychotic disorder were "under control," that would not reduce his risk of re-offending "below the threshold of high likelihood."

Dr. McAllister interviewed W.J.S. and reviewed his criminal and psychiatric history. He arrived at his diagnoses based upon his "current interview and a thorough review of the sources." Dr. McAllister found that W.J.S. had "an incorrigible childhood, a mental illness that began in childhood, [and] a significant history of substance abuse[.]"

Dr. McAllister's review of W.J.S.'s records disclosed that W.J.S. had a longstanding, repetitive pattern of sexual assaults upon pre- and post-pubescent children, including numerous such assaults upon his own children; W.J.S. admitted having sexual activity with his own children. His offenses occurred between 1968 and 1993, which "indicate[d] a significant durability to his sexual deviance." The doctor opined that individuals "who molest not only inside their family, but who perform sexual crimes on children outside of their family have a higher risk to act again on the sexual impulses when at liberty."

Dr. McAllister gave the following diagnoses of W.J.S.: paraphilia N.O.S.; pedophilia; psychotic disorder N.O.S.; personality disorder N.O.S.; and borderline intellectual functioning. The doctor also diagnosed W.J.S. with marijuana, alcohol, cocaine and heroin abuse, which he found to be in "institutional remission"; he considered "there to be a very significant risk and/or a likelihood that [W.J.S. would] revert to substance abuse if [he] were at liberty."

Based on his diagnoses, Dr. McAllister concluded that W.J.S. currently "suffers from a mental abnormality which predisposes him to sexually reoffend." He also opined that W.J.S. is "at a very high risk to resume substance abuse . . . that would worsen his risk to sexually reoffend." The doctor described the risk of W.J.S. reoffending sexually as "high. Very high." In Dr. McAllister's opinion, whatever treatment W.J.S. may have received previously had done nothing to reduce that risk.

In her decision, Judge Perretti thoroughly reviewed the testimony and documentary evidence. Based on that review, the judge found that W.J.S. had committed a number of sexually violent acts against his own children and other children, and that his acts "have persisted over a considerable length of time involving a number of very young child victims who were prepubescent and range in age down to as young as four months." His response to treatment at the ADTC was "minimal."

Judge Perretti concluded:

The respondent has serious difficulty controlling his sexually-violent behavior. And the record establishes grave difficulty in controlling deviant sexual urges. It was explained that pedophilia does not spontaneous[ly] remit and, indeed, is known to continue into advanced age. Neither age nor therapy has in any way served to reduce the risk that the respondent poses to recidivate.

The diagnoses of the two evaluators who testified is clearly and strongly supported by the record in this case and most particularly by the respondent's own statements which clearly establish him as a pedophile. Other diagnoses are equally strongly supported. The evidence was clear and convincing that the respondent suffers from abnormal mental conditions and personality disorders that adversely affect his cognitive, volitional and emotional capacities in such a way as to predispose him to commit sexually violent acts.

He has very serious difficulty controlling his sexually violent behavior as has been unquestionably established by his long history of pedophilic acts against a number of prepubescent as well as post-pubescent children. There were many acts repeated over time on a regular weekly basis over the course of many years with the respondent violating more than one victim in any particular given period of time.

The Court is clearly convinced that this is a sexually violent predator and that all of the criteria of the statute have been met. The respondent clearly has serious difficulty controlling his sex-offending behavior and is highly likely to reoffend if not confined.

Pursuant to the SVPA, a convicted sexual offender will be subject to involuntary civil commitment at the conclusion of his or her sentence, if he or she is found to "suffer[] 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.

At the commitment hearing, the State must prove a threat to the health and safety of others because of the likelihood of [the respondent] engaging in sexually violent acts . . . 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.

[W.Z., supra, 173 N.J. at, 132.]

The trial court must address the individual's "present serious difficulty with control over dangerous sexual behavior. . . .

[T]he State must prove by clear and convincing evidence that . . . it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." Id. at 132-134.

"The scope of appellate review of a commitment determination is extremely narrow and should be modified only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court must give the "utmost deference" to the trial judge's determination of the appropriate balancing of societal interests and individual liberty. J.P., supra, 339 N.J. Super. at 459. That determination will be subject to modification "only where the record reveals a clear abuse of discretion." Ibid. "The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court's findings were clearly erroneous." D.C., supra, 146 N.J. at 58-59.

Judge Perretti's conclusion that W.J.S. suffers from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. In re Commitment of W.Z., 173 N.J. 107, 132 (2002). We find no "clear abuse of discretion" in ordering W.J.S. civilly committed, In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001), nor any manifest deviation from the controlling legal principles under the SVPA.

Affirmed.

20080310

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