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In re Civil Commitment of D.Z.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 1, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF D.Z.L. SVP-150-01.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-150-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 17, 2008

Before Judges Cuff and Baxter.

D.Z.L. appeals from the February 11, 2008 order that continues his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Aggravated sexual assault is considered a sexually violent offense. Ibid. In this case, D.Z.L. pled guilty to one count of robbery and one count of aggravated sexual assault. He also pled guilty in 1984 to aggravated criminal sexual contact and criminal sexual contact. The latter offense was committed six days after pleading guilty to aggravated criminal sexual contact.

D.Z.L. has been a resident of the STU since 2001.*fn1 At the January 30, 2008 review hearing, Dr. Rosemarie Vala Stewart, a psychologist, testified that D.Z.L. suffers from paraphilia NOS (non consent), polysubstance dependence in institutional remission, and personality disorder NOS (with antisocial and narcissistic features). Dr. Stewart reported that D.Z.L. has participated in substance abuse modules and is doing well in that setting but he has not participated in self-help groups despite encouragement by staff to do so.

Dr. Stewart also testified that D.Z.L. has continued to attend groups and "has some knowledge of treatment components of his sexual offense cycle, relapse prevention concept [but] has not completed written requirements." In fact, Dr. Stewart related that D.Z.L. has a tendency not to work within the treatment structures of the STU and has avoided the hard or "problematic" requirements or components of the treatment process. Dr. Stewart opined that D.Z.L.'s inability or unwillingness to work within the therapeutic framework of the STU raises questions about his compliance with treatment requirements and monitoring if he is discharged. She also noted that D.Z.L.'s course at the STU is consistent with his pattern of "living outside the norms of society" prior to his incarceration and commitment. Thus, Dr. Stewart and the treatment team recommended that D.Z.L. should continue in treatment at Phase Three.

Dr. Pogos Voskanian, a psychiatrist, testified that D.Z.L. suffers from paraphilia NOS (non consent), polysubstance abuse in institutional remission, and personality disorder NOS with antisocial and narcissistic features. He also opined that these mental abnormalities predispose him to sexually re-offend because there is a history of repetitive sexual offenses which explains the diagnosis. Polysubstance dependence [--] him being high all the time [--] this includes alcohol, cocaine, these are drugs that impair judgment and impair control. They disinhibit [an] individual. So you have someone with poor judgment and disinhibited who has sexual issues. And if this is all combined with lack of empathy and sense of entitlement, he can walk in, rape, whatever, is no big deal. It makes the likelihood of the offense much higher.

In addition, Dr. Voskanian reported that D.Z.L. still has difficulty controlling his sexual offending behavior and opined that his risk to sexually re-offend remained high. In that assessment, he relied in part on the Static 99 score of 6.

Judge Freedman found that the State established by clear and convincing evidence that D.Z.L. remains a sexually violent predator and subject to continued involuntary civil commitment at the STU. In doing so, Judge Freedman acknowledged that the treatment team and the professional who evaluated him credited him with making some therapeutic progress. On the other hand, the judge found that D.Z.L. has resisted certain treatment requirements that are conditions to progress in treatment. In fact, Judge Freedman found that D.Z.L. seems to resist certain aspects of the treatment program, including self-help groups. His refusal to participate in this treatment modality raises concerns about his compliance with outpatient treatment protocols.

Judge Freedman also expressed concern about D.Z.L.'s reluctance to join the therapeutic community at the Annex. D.Z.L. reported to his evaluators he had heard the Annex is not as orderly as the STU. He related that this atmosphere would be very hard on him and might cause him to "fall off the wagon." Judge Freedman remarked that "if that kind of stress would cause him to fall off the wagon, . . . what would the stress of having to go out in the street and be confronted with his old problems what would that do to his ability to stay [ ] 'on the wagon', as he said?"

On appeal, D.Z.L. contends that the weight of the evidence does not support the finding that D.Z.L. continues to meet the statutory definition of a sexually violent predator. He argues that Dr. Voskanian's testimony was not sufficient to carry the State's heavy burden of proof and that the trial judge improperly relied on this testimony. Moreover, D.Z.L. asserts that the judge effectively shifted the burden of proof to him because he has made successful completion of treatment the standard for discharge.

Our review of these findings 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). We may modify an order "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). We find no basis to disturb the February 11, 2008 order.

Our review of the record demonstrates that Dr. Voskanian conducted his own evaluation of D.Z.L. To be sure, he reviewed prior records and opinions of other professionals. In the context of a periodic review of a resident of the STU, review of prior records and opinions is unavoidable and necessary. Here, the report submitted by Dr. Voskanian and his testimony reveal that he reached his opinion about the present diagnosis and prognosis of D.Z.L. based on his interview of D.Z.L. and review of current treatment notes.

Furthermore, the trial judge did not shift the burden of proof from the State to D.Z.L. D.Z.L. did not make progress through all five treatment phases a condition of release. The judge simply emphasized that D.Z.L.'s reluctance to participate in certain treatment modules designed to address an identified disinhibitor raised serious concerns about D.Z.L.'s ability to control his sexually deviant behavior and to avoid further sexually violent behavior.

We, therefore, affirm the February 11, 2008 order. Affirmed.


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