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In re Civil Commitment of K.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 11, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF K.S. SVP-344-03

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-344-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2008

Before Judges Parrillo and Baxter.

K.S. appeals from the November 13, 2007 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He was initially committed to the STU on November 5, 2003. His commitment has been previously reviewed and continued on May 5, 2004 and October 17, 2006. We affirm.

The predicate offense is a September 15, 1989 conviction for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). The victim was the six-year-old son of K.S.'s close friends. The petition for involuntary civil commitment under the SVPA specifies that K.S., then thirty-eight years old, put his mouth on the child's penis.

That 1989 conviction was preceded by two earlier criminal sexual offenses involving children. The first occurred on March 14, 1975, when K.S. was convicted of debauching the morals of a minor, N.J.S.A. 2A:96-3, for fondling a twelve-year-old boy's penis and performing fellatio on him. The second occurred on February 16, 1982, when K.S. was convicted of three counts of second-degree sexual assault for fondling the penis of three boys, ages ten to eleven, when he came upon them in the woods.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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(b). "[T]he State must prove

[a] threat [to the health and safety of others because of the likelihood of his or her 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

During the November 13, 2007 hearing that is the subject of this appeal, Dr. Luis Zeiguer, a psychiatrist, diagnosed K.S. as suffering from: pedophilia; polysubstance dependence in institutional remission; and personality disorder NOS. Zeiguer opined that K.S. "suffers from a mental abnormality and personality disorder which affects him emotionally, cognitively and volitionally so as to predispose him to sexual violence." Zeiguer also opined that "without adequate control granted by structured supervision and surveillance, [K.S.] is sexually dangerous."

Zeiguer was asked on cross-examination whether K.S. "would be less than highly likely to re-offend sexually" if he were "living in a group-structured community with random parole audits, with G.P.S. monitor[ing], and parole knowing where he was going to be." He answered "yes." Yet at other points in his cross-examination, Zeiguer was unwilling to opine that K.S. would "live where he was supposed to live" and comply with his parole obligations if he were released. Twice he answered "I do not know if he would comply or not."

The State also presented the testimony of psychologist Doreen Stanzione, who explained the clinical findings and conclusions of the Treatment Progress Review Committee (TPRC). The TPRC, in its October 30, 2007 report, recommended that K.S. be permitted to advance to Phase-3 of treatment, which was one level below the highest level, Phase-4. The TPRC's October 30, 2007 report justified that recommendation by explaining that:

[K.S.] ha[s] taken the "floor" two to three times over the past several months and shows a deeper understanding of his clinical issues than . . . a year or so ago. . . . He was able to provide emotional, cognitive, and behavioral components of his build-up and acting out phases. He was also able to identify specific RP [Relapse Prevention] strategies specific to his offending and substance abuse. [K.S.] was receptive to feedback from staff and fellow residents. In addition, he is described as attending all process groups . . . . Generally, it appears that since the TPRC Clinical Interview, [K.S.] has continued to engage in Phase-3 work and increase his personal participation in therapy.

Despite the favorable conclusion the TPRC reached, many of its comments and observations could lead to a contrary conclusion. Specifically, after noting that K.S. had attended both the Sexual Identity and Self-Representation Modules, the TPRC commented that he "showed only a minimal effort in his individual presentation, both orally and in written form . . . and [displayed] a confused sense of his sexual identity requiring more work to reach . . . self-confidence and [avoid] creation of victims." Consequently, because of that "minimal effort," K.S. was directed to repeat the Sexual Identity Module. In addition, the TPRC noted that poor attendance caused K.S. to fail the Self-Representation Module. In fact, when asked about his recent treatment, K.S. responded, "I haven't really done a lot this year. Some modules. Sexual Identity." When asked whether he completed his Sexual History Questionnaire, which is a key component of treatment, K.S. acknowledged that he "feels hesitant" about doing so.

Additionally, although the TPRC noted that K.S. had recently "become more engaged" in treatment, "his motivation to actively engage in treatment has vacillated. For much of his commitment since 2004, he has been stagnant in treatment and sat on the sidelines." The TPRC also noted that "treatment providers have been concerned historically that he is over-confident in his ability to avoid reoffending . . . ." Those findings are especially problematic in light of the TPRC's comment that:

[K.S.] has been convicted of acting on his pedophilic arousal with five underage males ranging in age from 6 to 12 years of age.

He has reported having approximately fifty total victims. . . . He has demonstrated a longstanding and compulsive arousal to prepubescent males. The level of his compulsivity as evidenced in the number of his victims, as well as the short duration leading to offending again after two incarcerations at the ADTC, suggests that to reduce his risk of [re]offense he needs to be active and vigilant in treatment.

Finally, the TPRC reported that K.S. had received a score of 7 on a recently administered Static-99 Test. The Static-99 is an actuarially-derived prediction instrument intended to measure long-term risk potential for sexually offending. K.S.'s score of 7 placed him in the "high risk" category. On another test instrument, the Psychopath Checklist-Revised, 2nd edition, K.S. scored in the "moderate" psychopathic range.

K.S. presented the testimony of Dr. Timothy P. Foley, who opined that the psychiatric literature on recidivism showed a correlation between advancing age and a reduction in the risk of reoffending. Accordingly, Foley concluded that with an age-related formula applied to fifty-six year old K.S., his risk of committing another offense was only thirty-seven percent over the next fifteen years. Although Foley agreed that K.S. currently "meets the diagnostic criteria for pedophilia," he nonetheless recommended that K.S. "should be considered for conditional release with continued treatment and supervision."

Judge Perretti found that the existence of mental abnormalities which predispose K.S. to engage in acts of sexual violence was clearly documented in the treatment records. She discounted the opinion of Dr. Foley because none of the statistics cited by Foley "having to do with aging have any specific relationship to this respondent." The judge reasoned that it is not appropriate to decide a case "based entirely upon an actuarial score" because "if that had been the intention of the Legislature in the drafting of the statute, the Legislature clearly would have said so." Judge Perretti also concluded that Dr. Foley's assessment of K.S.'s progress in treatment was not borne out by the treatment records that were received in evidence.

The judge also discussed the recommendation of the TPRC that K.S. be permitted to advance to Phase-3. The judge observed that her own review of the treatment records caused her to "question the somewhat flattering remarks made by the TPRC," and she pointed to fourteen specific portions of the TPRC report and the STU records that called into question the favorable recommendation the TPRC made.

Ultimately, Judge Perretti concluded that: the testimony offered by the State was clear and convincing that [K.S.] continues to be a sexually violent predator. There is no question that he is a pedophile. He acknowledges 35 to 50 victims. There is no question that he is . . . sexually dangerous. [K.S.] has done nothing to mitigate the risks that he presents. His participation in treatment has been noteworthy for lack of participation. It is crystal clear that this respondent is highly likely to commit sexually violent offenses if not committed for further treatment.

On appeal, K.S. argues that the judge's finding that K.S. was highly likely to re-offend if released was based on K.S.'s condition in 1989 and ignored the strides he made in eighteen years of treatment, in violation of In re Commitment of W.Z., 173 N.J. 109, 132-34 (2002).

Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

Measured by this standard, the November 13, 2007 order must be affirmed. Our review of Judge Perretti's findings and conclusions demonstrates that she properly evaluated both the actuarial and clinical evidence before her. The record amply supports her conclusion that: K.S.'s diagnosis is unchallenged; his participation in treatment, even by his own admission, has been indifferent; and his progress has been insubstantial. The judge's findings fully comply with the requirement of W.Z. that the court address the committee's present condition. Moreover, Judge Perretti's reasons for rejecting the expert opinion of Dr. Foley are persuasive, as was her determination that regardless of the TPRC's conclusion that K.S. had made sufficient progress in treatment to warrant his advancement to Phase-3, the clinical findings of the TPRC itself do not justify its "flattering" assessment of K.S.

In light of K.S.'s admission that he had victimized fifty children, the judge's careful scrutiny of the TPRC report and the STU treatment staff's notes was both appropriate and incisive. We conclude that the record fully supports Judge Perretti's findings and satisfies the State's heavy burden of proof that K.S. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.

Affirmed.

20080311

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