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In re Civil Commitment of J.S.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 10, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF J.S.W., SVP-168-01.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-168-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2008

Before Judges Sapp-Peterson and Messano.

J.S.W. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (the SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the November 15, 2007, order of Judge Philip M. Freedman, which continued his commitment after a twoday hearing. He argues that the State failed to present sufficient evidence to demonstrate that he continues to "suffer from a mental abnormality or personality disorder that makes [him] 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. After due consideration of the record and applicable legal standards, we affirm.

I.

J.S.W. was first committed to the STU on June 6, 2001, following his conviction and sentence on one count of sexual assault in May 1996. J.S.W. maxed-out on that sentence, and the State sought civil commitment thereafter, even though it had been earlier determined after an evaluation by the Adult Diagnostic and Treatment Center (ADTC), that J.S.W. was "not eligible for sentencing under the purview of the New Jersey Sex Offender Act." He appealed his initial commitment, and after remand required by the Supreme Court's ruling in In re Commitment of W.Z., 173 N.J. 109 (2002), the trial court reiterated its initial decision and a revised judgment of commitment was entered on September 30, 2002. We affirmed that commitment on J.S.W.'s first appeal that combined issues presented at the original hearing and the remand in a decision we issued on July 16, 2004. In the Matter of the Civil Commitment of J.S.W., A-1085-02 and A-1590-02 (App. Div. July 16, 2004). At two subsequent hearings, J.S.W. stipulated to his continued commitment.

The hearing that gives rise to this appeal commenced on October 23, 2007, before Judge Freedman with the presentation of testimony from Doctor Dean DiCrisce, a psychiatrist on staff at the STU, who indicated that J.S.W. declined to be interviewed for the evaluation. Defense counsel requested an adjournment, noting that J.S.W. now wished to participate in the interview. Judge Freedman granted the request, observing that the doctor was able to conduct an interview in short order and the matter would not require any long continuance.

The State then called Doctor Doreen Stanzione, a psychologist who was also on staff of the STU and had participated in the Treatment Progress Review Committee (TPRC) and its assessment of J.S.W.'s current condition and treatment progression. Stanzione reviewed the various participation notes in J.S.W.'s file, as well as the TPRC's report of October 3, 2007. She reiterated the TPRC's recommendation that J.S.W. remain in Phase Three of the treatment plan.

Stanzione noted that J.S.W. was an active participant in group meetings, however, she characterized his activity as "a little bit more ambivalent about . . . doing his own work . . . ." She continued, "[J.S.W.] hasn't been speaking about his own offending," and observed that, "it kind of becomes questionable whether he is doing Phase [Three] work." Stanzione confirmed that the treatment records revealed that J.S.W. attended thirty-two group sessions, but had also been absent on twenty-seven other occasions. She confirmed that J.S.W. had not "taken the floor" at the sessions since May 4, 2006. Stanzione opined that J.S.W. suffered from "paraphilia N.O.S. non-consent," and she gave reasons for this conclusion based upon J.S.W.'s offending history and subsequent treatment records.

The hearing was continued until November 9, 2007, when DeCrisce was again called as a witness to describe the interview he had conducted with J.S.W. in the interim and a second report he had authored as a result. DeCrisce noted that J.S.W. was "somewhat verbally hostile and somewhat inappropriate . . . extremely angry and frustrated" during the session. He observed that J.S.W. "stated that multiple interviewers had seen him in the past and ha[d] twisted his words . . . into their own agenda." In this regard, DeCrisce extensively reviewed J.S.W.'s treatment records and the explanations he had given in the past regarding his offending conduct, which were inconsistent with the reported history of those events.

DeCrice's initial report, completed before the interview, diagnosed J.S.W. with "paraphilia N.O.S." but he noted that after conducting the interview, the opinion was amended in his later report to "[p]ossible or rule out paraphilia." He explained that he could not determine whether J.S.W. was someone "who rapes in . . . [an] anti-social way," or "[o]ne who rapes in a paraphilic way," i.e., "one who is sexually aroused by the force and control necessary in the sexual activity." This ambivalence was the result of J.S.W. "not significantly detail[ing] his accounts in group in any way in the last one and a half to two years."

DeCrisce referenced J.S.W.'s long criminal history and alcohol abuse in his past. He also described the findings made as a result of various psychological tests that had been administered to J.S.W. and concluded that he was "within the highest range-actuarially of risk to recidivate." In conjunction with J.S.W.'s "anti-social personality disorder," DeCrisce opined that J.S.W. met the statutory criteria for continued commitment.

During cross-examination, and in her closing statement, counsel for J.S.W. focused on DeCrisce's "rule out" diagnosis, as well as the rest of his testimony and the treatment records, essentially arguing that the State had failed to meet its burden of proof. She argued that J.S.W. had demonstrated improvement and participation in therapy, was highly unlikely to re-offend, given his age of forty-eight years, and that the STU should "gradually de-escalat[e] [the] restraints . . . and begin to make preparations for his transition into the community."

In his oral opinion issued on November 15, 2007, Judge Freedman reviewed the evidence in the record including J.S.W.'s prior criminal and offending history, alcohol abuse, and steroid abuse, and concluded that the State had proven by "clear and convincing evidence" that J.S.W. had "an inability to control his behavior." He accepted DeCrisce's opinion that "this level of dangerousness can be accounted for solely by the anti-social personality disorder" diagnosed, combined with reference to the possible paraphilia. The judge extensively reviewed the psychological test findings referenced by DeCrisce, noting that although J.S.W. "did not meet the cut-off for psychopathy, . . . he was "in the high range" of testing for that condition.

The judge went on to observe that DeCrisce had conceded that J.S.W.'s alcohol abuse in the past could be monitored outside the STU, and that might "reduce risk" after "significant monitoring with a step-down before release." The judge also noted that DeCrisce had observed that a "conditional discharge" might have been appropriate, if J.S.W. had "completed what the TPRC requested that he do for the last two years." He detailed those failings, noting intermittent and uninvolved participation in therapy, and the judge conducted a thorough review of the treatment notes to support the conclusion that J.S.W. was not prepared for any conditional release or change in treatment level.

Judge Freedman concluded that the State had demonstrated by clear and convincing evidence that J.S.W. was still suffering from "a paraphilia and anti-social personality disorder," that "certainly in combination . . . predisposes him to engage in acts of sexual violence." He further found that if released, J.S.W. "would have a serious inability to control that behavior . . . to such a degree that it would be highly likely in the reasonably foreseeable future [he would] continue committing criminal acts in general, . . . sexually violent criminal acts as well." He entered the order now under review, which also set October 9, 2008, as the date for further review.

II.

The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63, (App. Div.), certif. denied, 177 N.J. 490 (2003). The trial judge's "determination should be accorded '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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). On appeal, "[t]he appropriate inquiry is to canvas 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).

Although J.S.W. focuses upon DeCrisce's equivocal opinion regarding a diagnosis of paraphilia N.O.S., the record amply supports Judge Freedman's findings that J.S.W. currently suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely he will re-offend if not committed to the STU. In re Commitment of W.Z., supra, 173 N.J. at 132-33. In particular, DeCrisce's testimony regarding J.S.W.'s anti-social personality disorder, supported by the testing data that suggested a high risk of re-offense, was unequivocal.

We note, as the State urged at oral argument before us, the prior diagnoses of paraphilia N.O.S. replete in the treatment records and prior evaluation. We also note the same diagnosis reached by Stanzione and confirmed in the TPRC's most recent report. However, like Judge Freedman, we need not place reliance upon that evidence to support the current finding that the State's burden of proof has been met. In large part, DeCrisce explained that the reason for his "rule-out" diagnosis was an inability to assess fully that condition because of J.S.W.'s own refusal to actively participate in his therapy over the past one and one-half to two years.

The TPRC conclusions reflect a situation in which J.S.W. has barely adequately participated in his Phase Three treatment, often recognizing and commenting upon the disclosures of others in the group, but refusing to reflect upon his own offending history. In fact, the record fully supports the conclusion that J.S.W. has failed to accept responsibility for his predicate offense, much less his other criminal activity, instead seeking to place blame upon others or explaining those situations as the results of misunderstandings. Judge Freedman took note that J.S.W.'s explanation for these multiple events was that "a lot of people make false accusations about [him]," thus supporting the doctor's opinion of "a pattern of denying responsibility for anything . . . ." In short, the conclusion reached that J.S.W. has not progressed in treatment, but has barely sustained his involvement, is well-founded upon the record.

For all the foregoing reasons, we conclude that the State has sufficiently demonstrated by clear and convincing evidence the standards necessary for the continued commitment of J.S.W. at the STU.

Affirmed.

20080610

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