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In re Civil Commitment of W.A.L.

October 1, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF W.A.L. SVP-333-03


On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 333-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Cuff and Baxter.

W.A.L. appeals from a July 3, 2008 order that continued his 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. W.A.L.'s commitment to the STU began on August 28, 2003, when he was temporarily committed. The Law Division entered an order of involuntary civil commitment at an initial hearing on January 8, 2004. Although W.A.L. appealed the January 8, 2004 order to this court, he subsequently withdrew that appeal. Thereafter, review hearings were held on July 12, 2006, and June 28, 2007, both of which resulted in orders continuing W.A.L.'s commitment to the STU. The most recent hearing, and the subject of this appeal, was held on July 2, 2008. We affirm.

I.

W.A.L.'s predicate offense is a September 30, 1999 conviction for an August 27, 1998 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). On the day in question, forty-six year old W.A.L. drove J.W., a forty-one-year old woman whom he knew, to a vacant field where he forced her into the backseat of the car, held her down by applying his right arm against her neck, and sexually assaulted her twice. On September 30, 1999, W.A.L. was sentenced for that offense to a six-year term of imprisonment at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, placed on community supervision for life and ordered to register as a sex offender.

W.A.L.'s sexual assault against J.W. was preceded by other sexual offenses, against both adolescent females and adult women. Specifically, on July 18, 1980, W.A.L. was sentenced to six to twenty-three months imprisonment in Monroe County, Pennsylvania as a result of an April 1980 incident in which W.A.L., then age twenty-seven, put his hand in the underpants of E.W., his eleven-year-old half-sister, and fondled her vaginal area. On October 10, 1980, W.A.L. was paroled. On May 1, 1981, while still on parole, W.A.L. was arrested for a sexual assault against sixteen-year-old F.F. at a motel, in which F.F. reported that W.A.L. forced her into the motel room by grabbing her arm and slapping her.*fn1 On May 10, 1982, W.A.L. was convicted of second-degree sexual assault and sentenced to a seven-year term of imprisonment for that crime.

During the July 2, 2008 hearing that is the subject of this appeal, the State presented the testimony of Pogos H. Voskanian, a psychiatrist. Dr. Voskanian diagnosed W.A.L. as suffering from: paraphilia, NOS; pedophilia, attracted to females, non-exclusive type; personality disorder NOS with anti-social traits; borderline intellectual functioning; and a history of alcohol dependence. Dr. Voskanian's twenty-seven page written report of June 6, 2008 was the result of Voskanian's clinical evaluation of W.A.L. on June 4, 2008, which lasted for approximately one-and-one-half hours. Voskanian's June 6, 2008 report was also based upon his review of the August 2003 petition for W.A.L.'s civil commitment to the STU, the records of W.A.L.'s treatment at the ADTC, and evaluations by Robert Carlson, Psy. D., and Evan Feibusch, M.D. Dr. Voskanian also reviewed and considered the report of the Treatment Progress Review Committee (TPRC) dated June 20, 2007, as well as all of W.A.L.'s treatment progress notes from the year preceding the July 2, 2008 hearing.

At that hearing, Voskanian was asked to describe the impact of those materials on the formulation of his own opinion. In answering, he testified that his review of those sources of information allowed him to "gather factual information" and "develop . . . a more complete and comprehensive picture of [W.A.L.'s] functioning and progress in treatment." Voskanian emphasized that his review of those documents was merely as background because he "ultimately formulate[d] [his] own diagnoses." In the course of his testimony, Voskanian commented that Dr. Feibusch, who had prepared a psychiatric report the previous year, had written an "excellent report."

Voskanian described W.A.L.'s sex offense history as encompassing "sexualized anger." According to Voskanian, W.A.L. "expresses his anger by raping, molesting and committing acts of violence . . . ." Voskanian also opined that when an individual such as W.A.L. "suffers from both personality disorder and a paraphilia or pedophilia, those conditions in combination . . . markedly increase[] the risk that such person will sexually re-offend. He commented that W.A.L.'s untreated alcohol abuse would exacerbate W.A.L.'s poor judgment and lack of self-control.

Voskanian concluded that W.A.L. remains at "a high risk" of sexually re-offending because his paraphilia and personality disorder "affected him emotionally, cognitively and volitionally so as to currently predispose him to commit acts of sexual violence." When asked whether W.A.L.'s anger and risk of re-offending had diminished because of his age, now fifty-seven, Voskanian disagreed, comparing W.A.L. to a "volcano. You see the smoke. One day it's going to erupt. Basically, . . . all the elements that can relate to [an] anger outburst are still there."

The State also presented the testimony of Jason Fleming, a psychologist who serves as a member of the TPRC. Fleming described W.A.L.'s progress in treatment over the past year as "unproductive" because, according to the treatment team, W.A.L. is "not internally motivated, but just complying--just doing what he thinks he has to do." Fleming's written report, which was admitted in evidence, and his oral testimony, provided the following facts and opinions: 1) W.A.L's Static-99 actuarial score of 6 places W.A.L. in the "medium-high risk category" of committing another sexually violent offense; 2) W.A.L. was removed from the Therapeutic Community (TC) in May of 2008 because he was "unproductive and unwilling to address his treatment issues;" 3) although W.A.L. attended sixty-one group therapy sessions while in the TC, he "took the floor" to discuss his sexual offense cycle on only three occasions; 4) his "floors" were described by treatment team members as "not voluntary," because W.A.L. had to be continually prodded by group members and facilitators to address the group; 5) on the three occasions that W.A.L. "took the floor, he became "frustrated, angry, annoyed, [and] resentful of the process" when prompted by others to discuss his sexual offense cycle; 6) W.A.L. "has a history of sexually offending adult women against their will and has acknowledged an arousal to the struggle . . . and the taking [of] sex from an individual against their will"; 7) W.A.L.'s difficulty in "maintaining positive self-esteem . . . impair[s] his functioning and . . . affect[s] his ability to continue to make progress in the treatment program;" 8) despite the recommendation of W.A.L.'s psychiatrist that he continue on anti-depressant medication in order to increase his chance of benefiting from treatment, ...


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