November 18, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W., SVP-279-02
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-279-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 27, 2008
Before Judges R. B. Coleman and Sabatino.
N.M.W. appeals from an order entered by the Law Division on April 16, 2008, continuing his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to-27.38 ("SVPA"). The order followed a two-day review hearing, at which the State presented two mental health experts who evaluated N.M.W.'s current behavioral status and his conduct within the Special Treatment Unit ("STU") since the time of N.M.W.'s last periodic review in 2007. After reviewing the record in light of the contentions advanced at the oral argument*fn1 on appeal, we affirm.
We have previously set forth in detail, and will not repeat here, N.M.W.'s past history of sexually violent conduct, aberrational sexual behavior, and psychological diagnoses and treatment. See In re Civil Commitment of N.M.W., No. A-4610-06T2 (App. Div. Nov. 15, 2007) (slip op. at 2-3) (appeal of review hearing), certif. denied, 195 N.J. 418 (2008); In re Civil Commitment of N.W., No. A-4937-05T2 (App. Div. Jan. 22, 2007) (slip op. at 2-5) (appeal of review hearing); In re Civil Commitment of N.W., No. A-2333-02T2 (App. Div. Jan. 2, 2004) (slip op. at 4-5) (appeal of review hearing); certif. denied, 182 N.J. 429 (2005); In re Civil Commitment of N.W., No. A-2333-02T2 (App. Div. June 2, 2004) (initial SVPA commitment), certif. denied, 182 N.J. 429 (2005).*fn2 We have also already determined, as the law of this case, that N.M.W.'s past conviction falls within the statutory definition of a sexually violent offense under N.J.S.A. 30:4-27.26. See State v. Reldan, 100 N.J. 187, 203 (1985) (reciting elements of the law-of-the-case doctrine).
In summary, N.M.W. was convicted of vaginally raping a woman at gunpoint on December 22, 1997. He pled guilty to sexual assault and was sentenced to a five-year prison term. As part of the plea bargain, the State dismissed a separate count of the indictment, which had charged N.M.W. with committing the sexual assault of another victim later that same day. The second victim had been vaginally raped and forced to have oral sex. N.M.W. also has a history of seventeen arrests and three adjudications as a delinquent. During his incarceration in State prison, N.M.W. was sanctioned multiple times for indecent exposure and making sexual threats or proposals.
Shortly before N.M.W. was scheduled to complete his prison term, the State petitioned for his civil commitment under the SVPA. After a hearing in December 2002, the commitment application was granted. N.M.W. has been confined at the STU since that time. N.M.W. has had multiple periodic review hearings, all of which have resulted in judicial findings, by clear and convincing evidence, that N.M.W. remains afflicted with mental abnormalities that make it highly likely that he will commit sexually violent offenses if he were released into the community.
The present appeal arises out of review hearings that occurred on April 14 and 16, 2008. The State first presented Dr. Howard Gilman, an expert psychiatrist. Dr. Gilman was scheduled to interview N.M.W. at the STU annex. Upon arrival, N.M.W. asked Dr. Gilman whether he was there for the State or for his attorney. When Dr. Gilman informed N.M.W. that he was there for the State, N.M.W. refused to be interviewed. Despite that lack of cooperation, Dr. Gilman prepared a report and made medical conclusions and diagnoses as to N.M.W. using other available materials including legal documents, psychiatric reports, psychological reports, and treatment records. These various sources included information concerning N.M.W.'s latest review period. Dr. Gilman based his evaluation on these sources.
The materials reviewed by Dr. Gilman included a recent report from the STU's Treatment Progress Review Committee ("TPRC"). The TPRC's report indicated that N.M.W. was placed on treatment probation in April 2007 after missing several process groups. He was again put on treatment probation in June 2007 for intentionally masturbating in front of a female STU officer. The reports also revealed that N.M.W. had returned briefly to the annex in September 2007, but was again seen masturbating at the end of that month while he was on the telephone. Additionally, N.M.W. was placed in lockup in October 2007 after punching a peer and threatening an officer.
Based on this information, Dr. Gilman concluded that N.M.W. was "not doing very well in treatment." Specifically, Dr. Gilman found that N.M.W. had repeatedly masturbated in public or in front of female officers; had not actively participated in the treatment available to him; continued to deny responsibility for his sexual offenses; portrayed himself as a victim in those offenses; and had been assessed by those treating him as demonstrating poor impulse control and repetitive masturbatory behavior.
These findings led Dr. Gilman to render a current diagnosis of a mental abnormality which predisposes N.M.W. to sexually re-offend, as well as exhibitionism. The psychiatrist also found that N.M.W. has a history consistent with antisocial personality disorder and other conduct problems. Dr. Gilman further diagnosed N.M.W. with borderline intellectual functioning.
According to Dr. Gilman, the combination of those diagnosed disorders results in an increased risk that N.M.W. will sexually re-offend. He further opined that N.M.W. is predisposed to sexual violence. Given N.M.W.'s history of sexual offenses, his difficulties in behavior control, and his lack of progress in treatment, Dr. Gilman concluded that N.M.W. still has a serious difficulty controlling his sexually offending behavior.
The State's second expert at the hearing was a psychologist, Dr. Rosemary Valez Stewart, a member of the TPRC team that evaluated N.M.W. Dr. Stewart testified that N.M.W.'s treatment efforts to date have included programs on social skills, victim stances, and anger management, which were all incomplete. N.M.W. has also had partial treatment on substance abuse, for which stages of the Change 1 segment were also incomplete.
Dr. Stewart testified that the treatment team recommended that N.M.W. attempt to maintain some kind of stability by, among other things, not incurring any more infractions that would necessitate his transferring between units within the institution. She stated that:
I've understood that [N.M.W.] has not been able to engage meaningfully, even though he does speak when he comes to [the] group. He has not been able to attend group consistently. He has not been able to complete any modules consistently. He has not worked on any problematic requirements.
Dr. Stewart also recommended that telephone restrictions on N.M.W. were appropriate because phone calls were acting as a stimulant. She explained that during her interview with N.M.W., N.M.W. discussed his public masturbation, saying that he felt that he was given the message that there was nothing wrong with doing it, and doing it in front of a female officer. Dr. Stewart also stated that during her interview with N.M.W., he "emphatically denied ever raping anyone."
Based on her interview with N.M.W., and upon a review of pertinent documents, Dr. Stewart diagnosed N.M.W. with several disorders. She first diagnosed "paraphilia NOS (Not Otherwise Specified) non consent," noting N.M.W.'s sexual assaults on two victims as an adolescent, and the two female victims in the index offense. Her second diagnosis was exhibitionism, which was provisional in nature because "there is some doubt as to whether he exposes himself--whether the act of exposing himself provided some sexual gratification or his hypersexuality drives that behavior...." Third, Dr. Stewart diagnosed N.M.W. with alcohol and cannabis dependence, based partially on N.M.W.'s admission that he smoked copious amounts of marijuana from age thirteen until the time of incarceration. Fourth, Dr. Stewart made a diagnosis of learning disorder NOS. Finally, Dr. Stewart found that a diagnosis of impulse control disorder could not be ruled out.
N.M.W. did not testify at his review hearing. He did not present any witnesses.
After considering these proofs, Judge Perretti found that there is "no question that [N.M.W.] continues to be a sexually violent predator. The State's evidence was clear and convincing and uncontradicted." The judge further stated that it is "clear that [N.M.W.] has little or no control over his sex behavior including his sexually violent behavior as he demonstrated before confinement in a prison setting and in the STU. [N.M.W.] is highly likely to commit sexually violent offenses if not continued in custody in a secure environment."
Based upon the record, we are likewise satisfied that N.M.W. continues to meet the standards for commitment under the SVPA. See N.J.S.A. 30:4-27.26; see also In re Civil Commitment of W.Z., 173 N.J. 109, 127 (2002). The State has amply proven that N.M.W. continues to pose a significant 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. [W.Z., supra, 173 N.J. at 132.]
We agree with Judge Perretti that the State met its the burden of proof by the requisite clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The fact that N.M.W.'s acts of sexual exhibitionism have become less frequent in the past review period does not alter that conclusion. His treatment is substantially incomplete and he continues to present antisocial behavior.
Mindful of the narrow scope of review of judgments of civil commitment, see In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003), we are satisfied that the order on appeal should be affirmed, substantially for the reasons set forth in Judge Perretti's oral opinion.