On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-344-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...