June 25, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF M.Z.M. SVP-79-00
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-79-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: June 2, 2008
Before Judges C.S. Fisher and C.L. Miniman.
M.Z.M. appeals from an order for continued commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. M.Z.M. contends that he was convicted of only one sexually violent offense far removed in time and that his continued commitment is against the weight of the evidence. We affirm.
On May 24, 2000, the State first petitioned for civil commitment of M.Z.M., alleging that he was a sexually violent predator. Fourteen years earlier, on August 25 or 26, 1986, M.Z.M. had raped a woman at knifepoint and was arrested the following day. He pled guilty to first-degree armed aggravated sexual assault and was incarcerated for about ten years before he was civilly committed to Ancora Psychiatric Hospital, where he remained until the filing of the petition. Seven years prior to the predicate offense, defendant had been convicted of aggravated assault and armed robbery in Georgia and was sentenced to ten years at the Rutledge Correctional Institute. He was released on September 14, 1984.
While at the forensic psychiatric hospital, M.Z.M. self-reported that he had raped at least twelve other females, that he raped because women put him down and rape was his method of revenge. While incarcerated M.Z.M. had expressed his admiration for, and identification with, other rapists. His self-esteem is predicated on his identity as a rapist. He reported having little, if any, victim empathy and idolizes serial rapists.
During his civil commitment at Ancora, M.Z.M. was caught engaging in inappropriate sexual behavior with a developmentally disabled female patient on one occasion and on another occasion was found in possession of pornographic materials and toys. M.Z.M. also self-reported to clinicians at Ancora that when he was nine he threw a boy off a balcony because the boy was "messing around with his girlfriend." He also self-reported that he had a dangerous attraction to a female therapist while at A.D.T.C. Department of Corrections' institutional records indicate that M.Z.M. received at least four institutional charges while incarcerated.
On June 8, 2000, M.Z.M. was temporarily civilly committed pursuant to N.J.S.A. 30:4-27.28 to the State of New Jersey's Special Treatment Unit (STU) located in Kearny. On August 8, 2000, the judge entered a judgment of commitment following a final hearing that day. That commitment was continued by the same judge on August 6, 2001, August 6, 2002, July 31, 2003, and April 13, 2005.
The 2003 continuation of commitment was appealed. We affirmed that continuation, finding that the record overwhelmingly supported the trial judge's determination that the State established by clear and convincing evidence that M.Z.M. is a sexually violent predator who is highly likely to reoffend if discharged.
Defendant was evaluated on February 6, 2007, by Brian Friedman, Psy.D., and was again evaluated on March 23, 2007, by Pogos H. Voskanian, M.D. They each issued reports and testified at the review hearing.
Dr. Friedman testified first as a member of the Treatment Progress Review Committee (TPRC). He stated that his testimony would be consistent with the full contents of his report with the exception of a few updates. A week before his testimony, Dr. Friedman spoke with Dr. Enright and learned that M.Z.M. is on "treatment refusal status and is not attending his process group any longer." Dr. Friedman's report was admitted into evidence subject to the exclusion of inadmissible hearsay contained in the report.
Dr. Friedman testified that M.Z.M.'s general presentation suggested a desire to shock the panel members with some of the violent aspects of his fantasy life and his urges and cravings. By way of example, M.Z.M fantasizes about raping someone while he is strangling them so that he can watch them in what he calls a "death quiver" during the rape. Other fantasies are discussed in depth in Dr. Friedman's report.
The doctor opined that M.Z.M. suffered from a mental abnormality or personality disorder. The primary diagnosis on Axis I was sexual sadism. He explained that M.Z.M.'s fantasy life is extremely sadistic, involving torturing and killing people. Dr. Friedman also diagnosed M.Z.M. with paraphilia N.O.S. non-consent, which was based on his history of twelve reported rapes and his fantasy life. The doctor also indicated that a number of substance abuse and dependence diagnoses reduced M.Z.M.'s "inhibitions" and emboldened him when he was high or intoxicated, which he characterized as a risk factor. Dr. Friedman also diagnosed a severe, antisocial-personality disorder in that M.Z.M. does not view people in a very human fashion but as objects to get him what he wants. The doctor testified that M.Z.M.'s PCL-R score was 34.4, which was clearly indicative of current psychopathy.
With respect to treatment, Dr. Friedman testified that M.Z.M. attended only fifty percent of the time, that he was not taking the floor often, and that he had not completed a single treatment module since his initial commitment in 2000. M.Z.M. also had not completed any of the written work that is a part of the program, such as autobiography, maintenance contract, and sex-offense-history questionnaire. Dr. Friedman testified that M.Z.M. was in Phase 2 of treatment, but was at risk of being reduced in phase if he did not return to group therapy.
Dr. Friedman reported that M.Z.M. indicated that he sees himself as a relatively dangerous individual. The doctor also indicated that M.Z.M. told him personally that he fantasizes about hurting and mutilating people and that he gets an erection when he does so. M.Z.M. also stated that when he was young he had tortured his cousins with electrical shocks, tied a girl up by her hair to a pipe, and choked children. He also related thoughts of raping therapists. M.Z.M. indicated that being dismissed by a female causes him to become angry and his anger leads him to fantasize about killing somebody. Dr. Friedman recommended specific further treatment and stated M.Z.M. "has a very long history of a very deviant pattern of arousal that's never going to go away completely. But we do not yet know how much he can potentially work toward trying to reduce that [be]cause he has not yet really attempted that."
After direct and cross-examination of Dr. Friedman, Dr. Voskanian took the stand. Dr. Voskanian testified that he diagnosed M.Z.M. with paraphilia N.O.S., sexual sadism, polysubstance dependence in controlled environment, personality disorder, strong antisocial traits and borderline narcissistic personality disorder. He also opined that there was a possibility M.Z.M. suffered from necrophilia in that he speaks of having sex with dying females. He opined that these paraphilias and the sexual sadism will not disappear spontaneously because it was M.Z.M.'s lifelong identity. Dr. Voskanian further opined that there was no treatment because M.Z.M. will not participate in it and has never completed any assignments. He stated that M.Z.M. "just lives here."
Dr. Voskanian related, as did Dr. Friedman, that as a child M.Z.M. tortured and killed animals, particularly raccoons, using a plethora of painful methods to kill them. He opined that M.Z.M. presented a high risk of sexual reoffense in the foreseeable future unless he was confined to a secure treatment facility. He concluded that, as M.Z.M. speaks about his offenses in victimizing his cousins and women and animals and his allegedly "accidental" killing of two people,
[Y]ou can see him taking pride in . . . presenting himself as someone who can do a lot of damage. So if that is his set of mind and he has a history of doing that, and he's not engaged in treatment, there is nothing . . . to prevent him from doing it again in one form or another.
In all, the doctor felt that M.Z.M. was quite "proud" of his accomplishments.
The judge recited the evidence on which she relied and concluded:
The testimony presented by the State was clear and convincing. The respondent clearly continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorder that influences his cognitive, volitional, and emotional functions so as to predispose him to commit sexually violent acts.
He has serious difficulty controlling his sexually violent behavior as he has demonstrated in the past.
The risk of his committing sexually violent offenses is extremely high. It is highly likely that he will recidivate upon release. It is predicated that there is no question about it.
In seeking an initial or continued civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, the State must prove "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). Our Supreme Court has explained this statutory standard as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future.
No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).]
The court must consider the individual's "past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct."
State v. Bellamy, 178 N.J. 127, 136 (2003); see also W.Z., supra, 173 N.J. at 132. The State must also prove that the individual "suffers from a mental abnormality or personality disorder." G.G.N., supra, 372 N.J. Super. at 46-47. "[O]nce the legal standard for commitment no longer exists, the [individual] is subject to release." In re Commitment of E.D., 353 N.J. Super. 450, 455 (App. Div. 2002), rev'd on other grounds, 185 N.J. 536 (2005); see also N.J.S.A. 30:4-27.32, -27.35; W.Z., supra, 173 N.J. at 133.
The scope of appellate review is extremely narrow. "We give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.) (citing In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)) (holding that SVPA civil commitment decisions are subject to an abuse-of-discretion standard on appeal)), certif. denied, 185 N.J. 393 (2005).
Applying that scope of review to the judge's findings and conclusions based on the evidence before her, we find no mistaken exercise of discretion in the continued commitment of M.Z.M. The State proved by clear and convincing evidence each of the elements necessary to continue commitment under the SVPA.
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