March 14, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF R.A., SVP-62-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-62-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2008
Before Judges Parrillo and Baxter.
R.A. appeals from an August 22, 2007 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, for a term of one year. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In 1977, defendant, who was born on June 8, 1942, was found guilty of rape and kidnapping among other offenses, and sentenced to an aggregate term of 47 years in prison. In 1978, he was found guilty of atrocious assault and threat to kill and assault with a dangerous instrument and sentenced to seven years, with a six-year minimum, on each count, that is, 21 years, with an 18-year minimum term. Defendant appealed that conviction and this court directed that the conviction for assault with a dangerous instrument merge into the conviction for threat to kill; his sentence was accordingly reduced to 12 to 14 years.
Each of the convictions was based upon separate assaults in 1976 upon 16-year-old girls. Although defendant was not charged with a sexually-related offense for the second incident, defendant admitted subsequently that his plan had been to rape the second victim, but when he encountered difficulties, he threw her off a bridge.
R.A. was paroled in 1992 and immediately violated the terms of his parole by leaving the State. He was later apprehended in Arizona, in possession of a stolen car and a loaded handgun. His passenger in the car at the time, M.L.R., who is currently on Florida's death row, told the Bergen County Prosecutor's Office that R.A. spoke about picking up and killing women. R.A. was returned to prison because of his parole violation.
R.A. was again released on parole on March 9, 2000, but because he failed to register as a sex offender as required by Megan's Law, N.J.S.A. 2C:7-1 to -11, and, after a nationwide manhunt, R.A. was arrested on March 20, 2000.
On March 24, 2000, the State filed a petition seeking R.A.'s civil commitment pursuant to the SVPA. On September 20, 2000, following a hearing, R.A. was committed to the Northern Regional Unit as a sexually violent predator. He has had periodic reviews thereafter -- on July 24, 2001, August 1, 2003, and May 12, 2005 -- at which commitment was continued. We affirmed each of these orders. See In re Civil Commitment of R.A., No. A-0126-01T3 (App. Div. Jan. 24, 2003) (slip op. at 5-6); In re Civil Commitment of R.A., No. A-0164-03T2 (App. Div. Mar. 17, 2005) (slip op. at 5-7); In re Civil Commitment of R.A., No. A-0486-04T2 (App. Div. May 23, 2007) (slip op. at 5-7).
At the most recent review hearing on August 22, 2007, the State produced two experts, Dr. Luis Zeiguer, a psychiatrist, and Dr. Brian Friedman, a psychologist. R.A. did not attend and offered no witnesses although counsel fully participated. R.A. refused to be interviewed by Dr. Zeiguer, who nevertheless based his evaluation on a review of R.A.'s file including treatment notes. Dr. Zeiguer diagnosed R.A. with a most severe antisocial personality disorder and paraphilia N.O.S. on Axis I and II, and found no evidence that R.A. was "remorseful over the atrocious injuries that he inflicted." According to Dr. Zeiguer, R.A. would be unlikely to comply with a supervised program if released because, upon his previous release in 2000, he ignored his requirement to register under Megan's Law as a sex offender, violated his parole, and was eventually arrested in another state with a stolen car and another felon in which the two men were planning to commit deadly sex offenses. Moreover, R.A.'s progress in treatment has been minimal. As Dr. Zeiguer testified on cross-examination:
[O]nce [R.A's] in treatment, he's not willing to do what they ask him to do which is to talk about his sexual crimes, his deviant arousals, and . . . that he doesn't do. So he . . . didn't do anything that would tend to indicate that he has changed his personality. He's not complying with what they are asking him to say. He shows his body there, he's polite, but what they are asking him to say he's not willing to say it.
Consequently, Dr. Zeiguer concluded that there is an "extremely high" risk that R.A. will sexually re-offend in the foreseeable future unless he is confined in a secure facility for treatment.
Dr. Friedman authored the Treatment Program Review Committee (TPRC) report of July 2, 2007, which was based on several sources of information including R.A.'s STU file and treatment notes. Dr. Friedman diagnosed R.A. with paraphilia N.O.S. for non-consent, sexual sadism on Axis I, personality disorder N.O.S. with severe antisocial features, and antisocial personality disorder. Dr. Friedman also noted that R.A. scored 6 on the Static-99 test, which placed him in the "high" risk range for sexual offense recidivism, and that in the expert's opinion, "[t]he aging process alone . . . [would not] significantly reduce [R.A.'s] risk until he gets substantially older."
R.A.'s treatment notes from May 2, 2005 to most recently, July 23, 2007, on which Dr. Friedman relied, indicate that R.A. has not participated in treatment at the STU and "his participation has been entirely lacking." Specifically, on December 10, 2005, R.A. "minimizes his offenses stating, 'I only raped one woman and it was a date rape. I knew her.'" In addition, R.A. "declined to participate in recommended [therapy training] modules." According to Dr. Friedman, R.A. was recommended for Phase II treatment, but has not progressed to Phase III because he continues to avoid discussing his sexual offense cycle, demonstrates no command over his cycle, has not completed his autobiography, sexual offense history questionnaire or maintenance contract, and has yet to complete any treatment modules, such as either prevention, coping with one's own personal victimization or anger management. Notably, R.A. has even refused to be interviewed by the TPRC.
At the conclusion of the hearing, Judge Perretti found by clear and convincing evidence that R.A. was in need of continued involuntary commitment. She concluded:
The State's evidence was clear and convincing. The Court is clearly convinced that the respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts.
He has serious difficulty controlling his sexually violent behavior. He is highly likely to commit sexually violent offenses in the foreseeable future if he is not confined for further treatment. Inasmuch as this respondent is refusing sex offending specific treatment, he must be confined for the protection of the public.
There will be a review in one year. This appeal follows.
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. "[T]he State must prove that 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[,]" and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[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 [a] plan for safe reintegration into the community." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where 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 Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower [court's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of August 22, 2007.
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