March 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF L.B.R., SVP-99-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-99-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2008
Before Judges Parrillo and Baxter.
L.B.R. appeals from a judgment entered on September 20, 2007, ordering his continued civil commitment to the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
L.B.R. was born on July 18, 1950, and has been committed to the STU for custody, care and treatment since July 5, 2000. This appeal follows his seventh review hearing.
Some background is in order. L.B.R. has an extensive history of criminal behavior dating from 1972. In addition to sexual offenses, L.B.R. has been convicted of burglary, larceny, vehicle theft, contributing to the delinquency of a minor, forgery, damage to property, theft by unlawful taking, and simple assault.
Prior to committing the predicate offense in 1992, L.B.R. engaged in aberrant sexual behavior with minors on two occasions. First, L.B.R. was arrested and charged in June 1980 with the aggravated sexual assault, by digital penetration, of his twelve-year old niece. L.B.R. was convicted of sexual assault and received a three-year probationary term. Next, in November 1987, L.B.R. was charged with criminal sexual contact, terroristic threats and endangering the welfare of a child. He pled guilty to endangering the welfare of a child and received an eighteen month prison sentence. L.B.R.'s allocution revealed that he and his young victim were in his car, after having gone out for pizza, when L.B.R. touched the girl's thigh and told her he would pay her for sexual favors. There was also a second young female victim whom he propositioned but did not touch.
The predicate offense for L.B.R.'s current civil commitment occurred between April and September 1992. On at least five separate occasions, L.B.R. engaged in coerced sexual intercourse with a fourteen-year old girl. L.B.R. was arrested in September 1992 and charged with one count of sexual assault and one count of endangering the welfare of a child. Defendant entered a guilty plea to the sexual assault charge on January 24, 1994, and was sentenced to a nine-year prison term with a three-year period of parole ineligibility.
L.B.R. was scheduled for release from prison in July 2000, and the State filed a petition for SVPA commitment on July 5, 2000. A temporary order of commitment was entered on July 11, 2000, with a final hearing being scheduled for July 31, 2000. With L.B.R.'s consent, an order was entered on September 18, 2000, continuing his SVPA commitment. Review hearings were held on March 19, 2001, December 6, 2001, and June 5, 2001, at which times L.B.R.'s commitment was continued. Further review hearings took place on November 20, 2003 and November 5, 2004, when the court continued L.B.R.'s commitment.
At the conclusion of the latter hearing, Judge Freedman found "that [L.B.R.'s treatment notes] support the conclusions reached by Dr. Zeiguer that there has not been a sufficient improvement" and that L.B.R. has a "severe personality disorder." L.B.R's past conduct demonstrated "this inclination to commit sexually-oriented offenses" and that his mental abnormality, paraphilia, combined with his personality disorder "create in him a serious difficulty in controlling his sexual behavior." Rather, he is "a very dangerous person, despite his health conditions." As to L.B.R.'s treatment during the year since his prior commitment hearing, Judge Freedman concluded:
[h]is understanding of the offense cycle --is significantly less than one would reasonably expect given his time in treatment. Since he has only just recently begun to engage the treatment process, he is just now learning to identify the fundamentals of the offense cycle and to recognize cognitive, behavioral change
[H]e does not at this time have any significant relapse prevention plans or strategies. He does, however, understand the importance of abstaining from alcohol abuse. He has some basic understanding of the effects of his offenses on victims; however, he needs to further explore empathy-related issues.
L.B.R. appealed from the November 20, 2003 and November 5, 2004 orders, which were consolidated for purposes of appeal, and this court affirmed his continued commitment on June 27, 2005. In the Matter of the Civil Commitment of L.B.R. - SVP-99-00, Docket Nos. A-2231-03T2 and A-1504-04T2 (App. Div. June 27, 2005). We concluded that there exists an ample basis for finding that
[L.B.R.] remains at a high risk to continue his dangerous conduct of sexual activity with pre-pubescent girls and that his treatment to date has not sufficiently ameliorated that risk. He remains a predator, i.e., one who victimizes others for his own benefit. [Id. at 19.]
Another review hearing was held on October 18, 2005, and the court ordered L.B.R.'s continued commitment. Specifically, Judge Perretti concluded:
[L.B.R.] has no restraint, according to the testimony. Thus, [the State's expert, Dr. Apolito] concludes that [L.B.R.]'s risk to reoffend is high. He has made no progress in sex offending behavior. [He] [h]as not changed his behavior. [He] [i]s not motivated to acquire the strategies which would permit him to control his behavior and thus prevent relapse.
L.B.R. appealed and this court affirmed his commitment on February 15, 2006. In the Matter of the Civil Commitment of L.B.R. - SVP-99-00, Docket No. A-1345-05T2 (App. Div. Feb. 15, 2006), wherein we held:
We are satisfied that the evidence presented by the State supports the judge's finding that L.B.R. has not made sufficient progress in treatment in the STU programs that are "tailored to address the specific needs of sexually violent predators" and the evidence does not permit a finding that
L.B.R. is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. [Id. at 11.]
L.B.R.'s most recent review hearing, the subject of this appeal, took place on September 18, 19 and 20, 2007. L.B.R. did not attend, and the only witness to testify was the State's expert, Dr. Dean De Crisce.
Dr. De Crisce attempted to interview L.B.R. in conjunction with this hearing, but L.B.R. refused. Consequently, Dr. De Crisce based his medical evaluation on a comprehensive review of L.B.R.'s file. L.B.R. was diagnosed with paraphilia NOS, alcohol dependence, depressive disorder NOS, personality disorder NOS and borderline intelligence. He was not diagnosed with pedophilia because only one victim was between the ages of ten and twelve, the others being under sixteen years of age.
L.B.R.'s Axis I diagnosis of alcohol abuse is considered a well-known risk factor for all types of recidivism, and he has not meaningfully participated in any substance abuse treatments in the last year. Also, there is currently no participation in any self-help program. Despite having completed a number of substance abuse modules in the past, according to Dr. De Crisce, L.B.R. is at a high risk of relapse because alcoholism is a chronic disease that requires continuous treatment. The last Axis I diagnosis of depressive disorder NOS, which does not on its own predispose a person to be a sexual predator, is significant here because L.B.R. attempted suicide twice in the past and has a history of alcoholism.
On Axis II, L.B.R. was given a diagnosis of personality disorder with significant anti-social personality traits because he minimizes his sexual crimes, blames his victims, and gives inconsistent versions of his own history. Dr. De Crisce noted that L.B.R. "rationalizes mistreatment of others, and repeatedly lies or cons others for personal profit or gain [for] potentially better outcomes legally." Specifically, in the 1980 digital penetration of his niece, L.B.R. first said the two were wrestling, then they were wrestling and his finger slipped in, then the victim had come out of the shower and was not dressed, and finally, he was waiting for the right time to commit the crime. In the 1987 proposition to the two girls, L.B.R. admitted to offering the girls money for sexual activities, then recanted and accused the brother of making up the story in retaliation for another act. In the most recent offense, from 1992, L.B.R. admitted intercourse with the fourteen-year-old girl, but changed his account and said that she seduced him.
According to Dr. De Crisce, L.B.R.'s treatment progress overall has been inadequate, in part because he is passive in group therapy and refuses to discuss his sex offending history, a crucial step in learning to mitigate these behaviors. According to the September 2006 treatment progress review committee (TPRC) report, L.B.R. has "not completed some core elements of the treatment." In fact, at the time of the review hearing, L.B.R. had not completed his written autobiography or sexual history questionnaire, or "discussed his offenses, his understanding of his sexual assault cycle, his triggers, his relapse plan, or his maintenance plan" in any significant way in over a year and a half. This was deemed highly significant because it is through therapy that sexual predators learn what triggers their deviant behavior and how to cope with avoiding them.
Although L.B.R. is in a special group for the cognitively impaired, his limitations do not render him unable to discuss his offenses; rather, "[L.B.R.]'s problem in this regard is his lack of participation." As the TPRC report notes, L.B.R. refused to be reviewed by the TPRC team and "shows little motivation to do anything with the information" learned in modules, and currently does not participate in them. According to Dr. De Crisce, L.B.R. suffers from disorders that do not "spontaneously remit" and need adequate treatment: without adequate treatment [defendant] remain[s] at the risk that [his disorders] suggest. And in [L.B.R.], he has not been adequately treated. [L.B.R.] is participating at a very minimal level and avoiding all attempts to participate in a meaningful way. Therefore, all I can really say is that I don't see any evidence of treatment significantly and he remains at the risk as if he was just arrested. . . . I believe . . . that he's highly likely to re-offend. He's a repeat offender with no significant treatment.
Accordingly, Dr. De Crisce concluded that because L.B.R. has been inadequately treated, "[t]he risk [of recidivism] continues to be highly likely."
In her September 20, 2007 decision denying L.B.R.'s release, Judge Perretti credited Dr. De Crisce's uncontradicted testimony. Noting that L.B.R. "has voluntarily refused to participate [in his treatment], except in a most insignificant fashion[,]" Judge Perretti found by clear and convincing evidence that L.B.R., "in spite of his serious medical condition, continues to be a sexually violent predator, able to perform the criminal acts which he did perform." L.B.R. has serious difficulty controlling his violent sexual behavior, there has been no mitigation of this risk since his arrival at the STU, and "[h]e is highly likely, if given the opportunity, to re-offend within the foreseeable future." We agree.
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).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial competent, credible evidence. We affirm substantially for the reasons stated by Judge Perretti in her oral decision of September 20, 2007.
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