May 21, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF D.C.R., SVP-274-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-274-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
D.C.R. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order of July 11, 2007, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Serena Perretti, J.S.C., in her oral opinion of July 11, 2007.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior" such that it is highly likely the individual will re-offend if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is extremely narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A). We add the following comments.
The predicate offenses leading to D.C.R.'s commitment to STU arose out of a first-degree aggravated sexual assault conviction on April 28, 1998, and his May 24, 2001 conviction for second-degree sexual assault of a thirteen-year-old victim between May 6, 1996 through December 31, 1996. He received an aggregate five-year custodial sentence, of which four years and three months were to be served without parole.
On October 3, 2002, D.C.R. was temporarily committed to the STU. That temporary order of commitment was followed by an order of judgment dated January 23, 2003, committing D.C.R. to STU, which, on appeal, we affirmed. In re Commitment of D.C.R., No. A-3270-02T2 (App. Div. Feb. 6, 2006). An order continuing his commitment, which is the subject of this appeal, was entered on July 11, 2007.
The hearing that preceded entry of the July 11, 2007 order under appeal was held the same day. Dr. Pogos Voskanian, a psychiatrist, testified for the State. No witnesses testified on behalf of D.C.R. The parties stipulated to Dr. Voskanian's qualifications.
At the time of the hearing, D.C.R. was in Phase Two of STU's five-phase treatment program. Dr. Voskanian, in preparation for his report, attempted to interview D.C.R. Correctional officers advised him that D.C.R. wanted to first consult with an attorney. Dr. Voskanian returned several hours later, but D.C.R. failed to appear for the interview. Dr. Voskanian testified that he was able to render a report without interviewing D.C.R. because "[he had] interviewed [D.C.R.] one year ago, and [he] reviewed [D.C.R.'s] treatment progress over the past year. [D.C.R.] had not made any progress practically, [D.C.R.] had taken some modules and flunked them[.]" He indicated that based upon his review of the record, his opinion from a year earlier that D.C.R. required continued commitment remained unchanged. He based his opinion upon the fact that (1) D.C.R. remained in Phase Two treatment, which he described as "[the] initial stage of treatment"; (2) the significant evidence that D.C.R. was alcohol dependent and that D.C.R. had described his predicate offenses as secondary to the use of alcohol; and (3) his continued diagnoses of D.C.R. as paraphilia NOS (not otherwise specified), pedophilia, non-exclusive type, and personality disorder with anti-social and narcissistic features. He opined that D.C.R.'s disorders "multipl[ied] the risk of future offenses" and that the current risk of re-offending for D.C.R. was no different than the risk presented at the time of D.C.R.'s initial commitment. In Dr. Voskanian's opinion, D.C.R. had not mitigated this risk by treatment, as evidenced by his continued placement in Phase Two.
Based upon the evidence presented, Judge Perretti found:
The evidence presented by the State 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 personal[ity] disorders that influence his emotional[,] cognitive, and volitional functioning in such a way as to predispose him to commit sexually violent acts. He has serious difficulty controlling these sexually violent acts, as he has demonstrated by his repetitive sex offending over a course of many years. It is highly likely that the respondent will commit sexually violent acts in the reasonably foreseeable future, if not continued in custody and confinement for further care as a sexually violent predator.
The evidence supports the finding that D.C.R. has not made sufficient progress in the STU program "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he continues to suffer 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 re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.