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In re Commitment of R.Z.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 17, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF R.Z.H. SVP-398-05

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-398-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2008

Before Judges Skillman and Winkelstein.

Appellant, R.Z.H., appeals from a November 15, 2005 judgment committing him to the State of New Jersey Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises the following two points for our consideration:

POINT I:

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.Z.H. IS A SEXUALLY VIOLENT PREDATOR IN NEED OF CIVIL COMMITMENT.

POINT II: R.Z.H. SHOULD HAVE BEEN DISCHARGED SUBJECT TO CONDITIONS AS THE COURT DEEMS NECESSARY TO INSURE THE PROTECTION OF THE COMMUNITY OR ALLOWED TO ENTER A PROGRAM WHICH WOULD INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

We conclude that appellant's arguments are without merit and affirm.

A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when he "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. To warrant commitment, the State must prove 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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the individual's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. The State must establish "by clear and convincing evidence . . .

that it is highly likely that the person . . . will reoffend." Id. at 133-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Here, the State has met its burden.

Appellant is forty-eight years old. He has a lengthy criminal record. In 1978, he sexually assaulted a twenty-six-year-old mentally challenged man, throwing the victim to the ground, punching him in the face and side, and attempting to sodomize him. The victim suffered rectal bleeding as a result of the assault. When appellant was arrested, he told the police that he had sodomized the man on a prior occasion.

Appellant pleaded guilty to sodomy and received a suspended sentence to Yardville Youth Reception and Corrections Center, with three years probation. He underwent a psychiatric examination at Avenel Adult Diagnostic and Treatment Center in 1979. Based on testing, his I.Q. was estimated at sixty-seven - within the "[m]ildly [r]etarded range of intellectual functioning." The examiner concluded that "[t]here is no clinical evidence that the incident is part of a repetitive and compulsive pattern of behavior." Therefore, appellant did not "fall under the purview of the Sex Offender Law."

In September 1980, appellant was placed on probation after being found guilty of burglary. He was arrested in March 1982, charged with aggravated assault and criminal sexual contact. He pleaded guilty to simple assault and criminal sexual contact. According to the presentence report, in February 1982, appellant violently forced a woman into a shed, hit her in the face, and attempted to rape her before her brother came outside and stopped him. The victim testified before the grand jury that appellant had punched her in the face and pulled her pants off.

In August 1982, while appellant was out on bail, he arranged to meet a female friend at her home. When he found her asleep on the sofa, he began touching her breasts and genital area with the hope of having intercourse with her. When the friend's mother awoke, appellant escaped through a window. He was charged with criminal sexual contact.

Appellant pleaded guilty to simple assault and criminal sexual conduct for the February 1982 incident, and in February 1983, the court sentenced him to concurrent nine-month and six-month jail terms. He also pleaded guilty to criminal sexual contact for the August incident, for which he received eighteen months probation, consecutive to the nine-month jail sentence.

In December 1982, prior to his sentencing for the sexual offenses, appellant was arrested for burglary and theft by unlawful taking, for which a jury convicted him. The court imposed concurrent four-year and eighteen-month sentences.

Appellant was paroled in January 1985. From 1985 to 2001, he was arrested fifteen times, and was convicted of eleven non-sexual offenses, serving more than two additional years in prison.

In September 2001, appellant was arrested after he allegedly tried to molest his fifteen-year-old daughter, T.C., who was staying with appellant and his sister at the sister's home. T.C. claimed that she was lying on the couch when appellant began fondling her breasts over her clothing. When she told appellant to stop, he told her to go back to sleep. When he started to touch himself over his pants, T.C. began screaming and crying, which apparently alerted a neighbor who was in another room, who called the police.

T.C. initially told police that she was unsure whether her father had ever touched her breasts or vaginal area. In her second interview with police, however, she admitted that her father had sex with her on two previous occasions. The first time, approximately one month before appellant's arrest, he woke T.C. and told her he wanted to have sex with her. After he promised to buy her clothing in exchange for sex, she agreed, and she and appellant engaged in sexual intercourse. According to T.C., appellant had sex with her again one week later.

Appellant was charged with aggravated sexual assault, aggravated sexual contact and endangering the welfare of a child. He pleaded guilty to endangering the welfare of a child in September 2002, and was sentenced to five years in prison. While in prison, he underwent three psychological evaluations. The first, in January 2003, concluded that "[h]is repetitive criminal sexual behavior appears most likely related to his self-centered and hedonistic approach to his life and his lack of concern for the needs and rights of others, including his own daughter." The second, in May 2004, concluded that he "should be referred at [the "max" of his sentence] to the [New Jersey Attorney General] as a sexually violent predator[.]" The examining psychologist concluded, however, that "[t]here appears to be no evidence at this time that he would meet requirements for psychiatric/civil commitment." The third evaluation, for the parole board, concluded that appellant was a poor parole risk and had a "HIGH risk for sexual recidivism."

In May 2005, shortly before appellant's scheduled release from prison, the State filed a petition for his civil commitment pursuant to the SVPA. The State supported its petition with clinical certificates from two psychiatrists, Susan Uhrich, M.D., and Kathryn Blackwell, D.O. Dr. Uhrich diagnosed appellant with impulse control disorder, sexual disorder NOS, borderline intellectual functioning and personality disorder NOS with narcissistic traits. Uhrich scored appellant at a 7 on the Static-99 test, indicating a high likelihood of committing additional sexual offenses. Dr. Blackwell diagnosed appellant with impulse control disorder, sexual disorder NOS and borderline intellectual functioning. She also scored him at a 7 on the Static-99.

Appellant's commitment hearing commenced on November 3, 2005, before Judge Freedman. The State produced two experts: Luis Zeiguer, M.D., a psychiatrist, and Brian Friedman, Psy.D., a psychologist. Appellant produced Paul Fulford, Ph.D., also a psychologist. At the court's request, Dr. Merrill Mahne, the director of psychology at the STU, testified concerning available treatment for developmentally disabled committees at the STU.

On November 15, 2005, Judge Freedman ruled that the State had proved by clear and convincing evidence that appellant: does have a mental abnormality and personality disorder that predisposes him to engage in acts of sexual violence as his older record and his present offense show; [and] that as a result of this predisposition . . . he would be highly likely to engage in such conduct in the reasonably foreseeable future if, in fact he was released now.

The court based this conclusion on the opinions of the State's experts, who determined that appellant suffered from impulse control disorder, paraphilia NOS and a personality disorder with antisocial traits, which together "predispose him to engage in acts of sexual violence." The judge acknowledged that the long period of time between appellant's sexual offenses "create[d] questions in the Court's mind," but the judge nevertheless found that appellant's more recent actions demonstrated that "his problem still exists." The court held that "[appellant's] return to . . . sexual offending much later on . . . show that his problem . . . still exists[,]" and that "his diverse victim pool . . . would result in a . . . sexual offense within the foreseeable future." The judge found that "despite having a normal sexual outlet, [appellant] returned to deviant sexual conduct and committed a sexual crime just as he had early on." The judge agreed with Dr. Friedman's conclusion that appellant's recent acts with his daughter demonstrated that "the problems have not gone away." The record supports these findings.

The State's experts each met with appellant, attempted to discuss with him his sex crimes, and reviewed his criminal record. They conducted tests and used actuarial tools, which are recognized measures of the likelihood of recidivism. See In re Civil Commitment of R.S., 339 N.J. Super. 507, 512 (App. Div. 2001), aff'd, 173 N.J. 134 (2002). Dr. Zeiguer diagnosed appellant with a personality disorder and paraphilia, while Dr. Friedman diagnosed a personality disorder and impulse control disorder. Both doctors concluded that these mental abnormalities predisposed appellant to commit acts of sexual violence. They concluded that this threat had not been mitigated despite the lengthy gap between sex offenses, and that actuarial tools confirmed their assessment that appellant is highly likely to reoffend if released untreated.

Dr. Fulford, appellant's expert, also diagnosed him with a personality disorder and acknowledged that the actuarial tools indicated a likelihood of future sex offenses. Dr. Fulford further recognized that appellant required treatment; but, he asserted that under proper supervision, appellant's mental abnormality would not lead to further sexual offenses.

The trial court was entitled to credit the testimony of the State's experts rather than appellant's expert. That testimony supports the court's conclusion that appellant qualifies as a sexually violent predator under the SVPA.

Appellant's remaining contention is that he should be sent to a less restrictive environment than the STU. He asserts that, due to his developmental disabilities, he will never be able to benefit from the treatment offered at S.T.U. and, as a result, he will remain there indefinitely. The judge rejected that argument, and the record supports the judge's findings.

The SVPA provides that if a court finds that, by clear and convincing evidence, an individual needs "continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32a. Nevertheless, under certain circumstances, a committee may be entitled to a conditional discharge, In re Civil Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004), which could entitle a committee to placement in a less secure facility. Here, however, conditions warranting a conditional discharge have not been met. The court has found that appellant presently has serious difficulty controlling his dangerous behavior, and he is highly likely to reoffend. Given these findings, there is no basis at the present time for a conditional discharge.

In addition, Dr. Mahne testified that developmentally disabled persons can receive rehabilitative treatment at the STU. Although the court expressed some reservations about appellant's commitment to that facility, the record supports the court's decision to have appellant placed there.

Affirmed.

20080617

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