June 17, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF G.Z., SVP 224-02
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-224-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2008
Before Judges Sapp-Peterson and Messano.
G.Z. is a resident of the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of involuntarily 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 December 4, 2007, order of Judge Serena Perretti, which continued his commitment and ordered a future review hearing to take place on November 14, 2008. G.Z. argues, as he did below, that he has made significant progress in his treatment, and that he should be conditionally discharged, with "severe restrictions." After due consideration of the record and applicable legal standards, we affirm.
In 1985, G.Z. pled guilty to second-degree aggravated sexual assault against a seventeen-year old female victim, a crime that occurred on September 18, 1983. G.Z. was twenty-three years old at the time and on parole from a 1982 conviction for non-sexual offenses. On May 21, 1988, less than three-weeks after his release and while again on parole, G.Z. was arrested in Nevada and charged with kidnapping, attempted kidnapping, and possession of a stolen motor vehicle. It was alleged that he had attempted to lure three young children, two ages five, and a third age nine, into his car, on two occasions. He was found guilty after a jury trial of kidnapping and possession of the stolen vehicle, and sentenced to fifteen years imprisonment in Nevada.
In 1999, G.Z. was released by the Nevada authorities and returned to New Jersey to serve a sentence for his violation of parole. During that incarceration, he was repeatedly found guilty of administrative infractions, and prior to his release, in January 2002, the State petitioned for his civil commitment pursuant to the SVPA. He was initially committed to the STU on January 10, 2002, and we affirmed that commitment on May 19, 2004. In re Civil Commitment of G.S.Z., A-2145-02 (App. Div. May 19, 2004).*fn1
The hearing that gives rise to this appeal occurred on November 30, 2007. G.Z. executed a waiver of his appearance, and Judge Perretti noted that he was "refusing to appear at his civil commitment hearing." The State's first witness was Doctor Pogos Voskanian, a psychiatrist, who began by noting G.Z.'s refusal to be interviewed on November 9, 2007. Voskanian noted in his report that G.Z. had previously refused to be interviewed in June 2003, and in July 2007. Nonetheless, Voskanian was able to formulate an opinion regarding G.Z. based upon his review of the file and treatment records while at the STU. He noted G.Z.'s participation in a "strike" while at the STU from sometime around November 2006 until February 2007. He further noted that G.Z. "was trying to start another strike and went on MAP (modified activity program) status" around March. Voskanian noted that G.Z. was doing "poorly" in treatment because "[h]e's not doing much."
Voskanian diagnosed G.Z. as suffering from "paraphilia N.O.S." but could not define it as "pedophilia," though he noted that was "definitely a consideration." The doctor also diagnosed G.Z. as "alcohol dependen[t]" and suffering from an "anti-social personality disorder." Voskanian opined that G.Z. had not participated in or had sufficient treatment during his commitment to the STU. He noted a 2005 incident in which G.Z. was found to have used drugs while at the STU. He concluded that G.Z. "practically remained an untreated sex offender with unmitigated risk for recidivism," and had actually "regressed in his behaviors."
On cross-examination, Voskanian acknowledged that G.Z. had participated in some treatment modules, and he noted the Treatment Progress Review Committee's (TPRC) most recent report, dated November 29, 2007, in which G.Z. was commended for "critically pondering his progress." However, Voskanian discounted this as demonstrative of any real progress, instead characterizing G.Z.'s behavior as a "kind of sporadic approach to things and intermittent regressions and violations of rules, [with] provocative behaviors," that "may translate into sexual offense very well when he has the opportunity."
Nicole Paolillo, a staff psychologist at the STU and a member of the TPRC for G.Z., testified that it was recommended that Phase Three treatment continue, despite G.Z.'s failure to participate "very much" in treatment. She reviewed those failures and reiterated G.Z.'s need to participate fully in the recommendations made by the staff. On cross-examination, Paolillo acknowledged that the TPRC's recommendations were substantial in length, that G.Z. might not be able to complete all of them, and that the staff might not be able to provide all of them to G.Z. because of budget restrictions.
In his summation, G.Z.'s counsel urged the judge to consider conditional discharge, with "severe restrictions" if necessary. Alternatively, he argued that the judge should order the STU to definitively set forth the treatment modules necessary, and should further order its staff to "provide them to [G.Z.]."
In her oral decision dated December 4, 2007, Judge Perretti reviewed Voskanian's testimony and his report that had been admitted into evidence. She accepted the doctor's opinion that G.Z. was essentially "just living" at the STU, and not participating in treatment. The judge reviewed in detail the progress notes in G.Z.'s file that demonstrated "[h]is attendance was sporadic," and "marked by unexcused absence and minimal participation when . . . present." The judge noted that G.Z. had attended the TPRC's evaluation session, but refused to participate "since he had nothing to offer." She found the committee's conclusion that this demonstrated "good judgment" by G.Z. to be "difficult" "to understand," and only made "sense in that [G.Z.] . . . has nothing to offer inasmuch as he ha[s] not been participating during the previous year."
Judge Perretti concluded that that G.Z. 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., 173 N.J. 109, 132-33 (2002). She entered a order continuing his commitment, and this appeal ensued.
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).
As we noted, the thrust of G.Z.'s argument before Judge Perretti, and reiterated before us at oral argument, was that he was an appropriate candidate for conditional discharge from the STU, or, alternatively, that the matter should be remanded for the entry of an order compelling the STU to provide specific, recommended treatment modules to G.Z. in the near future.
We note that there cannot be serious dispute as to the continued threat of sexually predatory behavior by G.Z. if released from the STU. His past criminal conduct is extensive, his past criminal sexual conduct is serious, and, on the two most recent occasions, he committed these offenses within a short time after being released from custody. The experts' opinion regarding his psychiatric condition and his risk of recidivistic behavior was virtually unchallenged at the hearing.
Instead, G.Z.'s argument focused on the level of his participation in treatment and the need for further treatment. However, we cannot agree with his contention that he has progressed in treatment to the level that conditional discharge would be appropriate, nor do we subscribe to the opinion that the STU should be ordered to specify and provide the necessary next stages of that treatment.
The clear and convincing evidence supports the conclusion that G.Z.'s participation in treatment has been sporadic and frequently marred by "self-defeating conduct," as Judge Perretti found. To the extent he was participating in treatment during 2006, he virtually stopped any participation thereafter for the next year. The judge clearly did not abuse her discretion by concluding conditional discharge was unwarranted.
Furthermore, while the SVPA requires that civil committees be provided with appropriately tailored treatment to address the specific needs of sexually violent predators, N.J.S.A. 30:4-27.34(b), the State has considerable discretion in determining the treatment for a person committed under the SVPA. M.X.L. v. N.J. Dept. of Human Servs./N.J. Dept. of Corr., 379 N.J. Super. 37, 48 (App. Div. 2005).
As we have noted, "[d]ecisions regarding the treatment program at the STU are based on judgments exercised by qualified professionals." Ibid. (citation omitted). We will not substitute our judgment regarding the appropriate treatment to be provided to G.Z., nor when it should be provided. The TPRC has set out a daunting array of necessary treatment modalities due, in large part, to G.Z.'s decision to essentially cease his participation in treatment during the year prior to this review. In the end, it is his willingness to seek progress in his treatment that determines his eventual release. We find no reason to disturb the order under review.