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In re Civil Commitment of E.X.C.

November 19, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF E.X.C.,*FN1 SVP-14-99


On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP 14-99.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2008

Before Judges R. B. Coleman and Sabatino.

E.X.C. is a resident of the Special Treatment Unit ("STU"), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order entered on February 20, 2008, which continues his civil commitment. We affirm substantially for the reasons set forth by Judge Freedman in his oral decision of that same date.

E.X.C. was initially committed in 1998, just before the expiration of his prison term for endangering the welfare of a fifteen-year-old minor. E.X.C. had induced the minor, the daughter of a former girlfriend, to send him nude photographs of herself. Apart from that most recent offense, E.X.C. has a long history of sexually violent crimes, which were described at length in our November 2001 opinion affirming his initial commitment and its continuation. See In re Civil Commitment of E.C., Nos. A-5785-99 & A-3111-00 (App. Div. Nov. 13, 2001) (slip op. at 2-14), certif. granted and summarily remanded for a review hearing, 174 N.J. 187 (2002).

Among other things, E.X.C. has been found guilty of raping an eighteen-year-old woman at knifepoint in August 1974; committing lewd acts and carnal indecency under violent conditions with a female telephone installer in December 1974; raping and tying up a mother of two children in her home in January 1975; sexually assaulting in October 1980 a woman that he had lured into his home while he was on parole; escaping in June 1981 from the Adult Diagnostic and Treatment Center ("ADTC"); and sexually assaulting the wife of an ADTC employee while he was a fugitive during that escape.

Since the time of his initial commitment, E.X.C. has been the subject of multiple review hearings. In each of those hearings, the court has found E.X.C. satisfies the requirements for continued commitment.

The present appeal arises out of E.X.C.'s most recent review hearing, which took place over the course of two days in November and December 2007. The State presented live expert testimony from two mental health professionals who evaluated E.X.C.: Dr. Louis Zeiger, a psychiatrist, and Dr. Robert Carlson, a psychologist who is a member of E.X.C.'s treatment team (the Treatment Progress Review Committee, or "TPRC") at the STU. The State also submitted the May 2006 transcribed testimony of another psychiatrist, Dr. Jason Cohen. Defendant testified in his own behalf, and also presented a written expert report from Dr. Rashmi Skadegaard, Ed.D.

Dr. Carlson last evaluated E.X.C. on April 18, 2007. He diagnosed E.X.C. with (1) paraphilia NOS ("Not otherwise Specified"), non-consent; (2) polysubstance dependence in possible remission; and (3) antisocial personality disorder with psychopathic traits. The doctor reported that E.X.C. is in Phase Three, which is the active phase of the STU treatment sequence. E.X.C. scored 30 on the Hair PCLR test, a result which is within the threshold of a psychopathic level. Dr. Carlson noted that the psychopathic characteristic "contributes to a finding that a person would be at substantial risk for criminal re-offense and if part of the criminal repertoire was sex offenses, also add[s] a high risk for sexual re-offense."

Dr. Carlson acknowledged that E.X.C.'s behavior has been stable within the institutional setting of the STU. However, E.X.C.'s long experience within an institutional setting has allowed him to learn how to get along there. According to Dr. Carlson, E.X.C.'s success within the STU is not dispositive because such an institutional setting does not permit opportunities to test actual remission. Dr. Carlson further opined that E.X.C. could benefit from additional treatment modules.

Dr. Zeiger's last interview with E.X.C. was in November 2007. He similarly diagnosed E.X.C. with paraphilia NOS, polysubstance abuse in institutional remission and antisocial personality disorder. In his testimony Dr. Zeiger particularly focused upon E.X.C.'s capacity to be deceitful and manipulative. As one illustration, Dr. Zeiger cited an incident in which E.X.C. refused medical treatment for his liver, and when later confronted with authorization forms that he had signed, E.X.C. falsely accused the medical staff of fraud. Dr. Zeiger stated that this scenario demonstrates the need to "corroborate whatever [E.X.C.] says." According to Dr. Zeiger, E.X.C.'s capacity to be deceitful and manipulative can at times mislead his treaters. He opined that the apparent progress of E.X.C. in his treatment modules is not proof of true success but instead is evidence of "learned success within the modules."

Dr. Zeiger also stressed E.X.C.'s impulsiveness, as was exhibited in his unplanned sexual attack upon the telephone installer. The doctor also noted that E.X.C.'s past sexual and emotional relationship with a ...


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