November 19, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.L.N. SVP-197-01.
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-197-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 27, 2008
Before Judges Carchman and Simonelli.
J.L.N. appeals from the June 23, 2008 judgment continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
J.L.N. was adjudicated a sexually violent predator and committed to the STU on April 23, 2002. He appealed and we remanded for reconsideration in light of In re Commitment of W.Z., 173 N.J. 109 (2002). After a remand hearing, J.L.N. was again committed to the STU. His commitment was continued after a review hearing in May 2003.
J.L.N. was conditionally discharged on September 22, 2004. Less than two weeks later, the State petitioned to revoke his conditional discharge because he allegedly violated several conditions. The State claimed that J.L.N. left the state, that he did not report to parole, and that he failed to reside at the approved residence. Judge Freedman denied the petition, but ordered increased restrictions. At the request of J.L.N.'s parole officer, J.L.N. was later placed on 24-hour electronic monitoring.
On April 19, 2005, the State applied ex parte to apprehend J.L.N. and return him to custody because he again allegedly violated the conditional release. Evidence presented at the hearing indicated that J.L.N. beat his wife and that her safety, and the safety of the therapist who reported this violence to the court, were at risk. The State contended that J.L.N.'s physical aggression indicated that he was again entering a sex offense cycle.
Judge Perretti granted the State's application and returned J.L.N. to the STU pending a hearing. After a hearing, on July 5, 2005, Judge Freedman revoked J.L.N.'s conditional discharge. J.L.N. appealed, and we affirmed. In re Civil Commitment of J.L.N., No. A-6425-04T2 (App. Div. November 21, 2006).
J.L.N.'s commitment continued after a review hearing in May 2007. J.L.N. appealed, and we affirmed. We concluded that:
Defendant's argument that he has committed no new offenses in the past twenty-five years completely ignores the fact that he has been incarcerated and committed for virtually that entire period of time. The record clearly indicates that J.L.N. was resistant to treatment prior to his conditional release and that he was unable to comply with any of the conditions of his release. He absconded from the jurisdiction almost immediately after his release, failed to maintain contact with his parole officer, failed to obtain the treatment as required, engaged in deception in order to obtain the conditional release and engaged in domestic violence with his former wife. Given all of those circumstances, we see no reasonable basis for recommending consideration of conditional release in the near future. [In re Civil Commitment of J.L.N., No.A-4902-06T2 (App. Div. December 28, 2007)]. Defendant's hearing concerning the present appeal began on May 8, 2008, less than a year after his prior hearing and five months after our decision of December 28, 2007. According to the State's evidence presented at the hearing, there has been no significant change in J.L.N.'s status. The State's expert forensic psychiatrist, Roger M. Harris, M.D., opined that J.L.N.'s years of treatment have not helped him. J.L.N. continues to sanitize the rapes, claiming that they did not have the aggressive, destructive, angry, menacing or sadistic aspects as reported by the victims. The doctor concluded that J.L.N. lacks the ability to control himself and has done poorly in treatment because he completely avoids the aspects of the rapes and lacks remorse. J.L.N.'s failure to properly engage in treatment, his refusal to address the aspects of the rapes, and his anger and resentment, makes him a "powder keg" for any future relationship and a threat to the community.
Dr. Harris diagnosed defendant as suffering from paraphilia NOS based on the characteristics of the rapes. The doctor also diagnosed defendant as having an antisocial personality disorder and deviant sexual arousal. J.L.N. also had a score of 6 on the Static-99, which placed him in a category of men who were at high risk to sexually re-offend when released. The doctor concluded that J.L.N. suffers from a mental abnormality or personality disorder that predisposes him to commit acts of sexual violence, that he continues to be at high risk to sexually re-offend and that he continues to meet the criteria for commitment under the SVPA.
Nicole Paolillo, Psy.D., a clinical psychologist and member of the Treatment Progress Review Committee (TPRC), also testified for the State. Dr. Paolillo also diagnosed J.L.N. as suffering from paraphilia NOS and anti-social personality disorder. She testified that J.L.N. made no significant changes and was continued in Phase 3 treatment in order to improve his relapse prevention and to address his deviant sexual arousal. Based on Dr. Paolillo's review of J.L.N.'s records and her interview with him, she concluded that he suffers from a mental abnormality or personality disorder that predisposes him to commit acts of sexual violence.
The State also presented Brian Friedman, Psy.D., a clinical forensic psychologist and member of the TPRC. Dr. Friedman testified that J.L.N. was placed on MAP in early May 2008 due to a physical altercation with another inmate on May 9, 2008, the day after the review hearing began. According to the doctor, this incident is significant to the issue of sexual re-offending because J.L.N. has a history of violence in his relationships, he committed aggressive sexual offenses, and he fights to control his anger.
Defendant presented the expert testimony of Vivian Shnaidman, M.D., a forensic psychiatrist. Dr. Shnaidman disagreed that J.L.N. has paraphilia and deviant sexual arousal or that he was highly likely to re-offend sexually. However, she agreed that defendant had an anti-social personality disorder, which predisposes him to commit any kind of violence, including acts of sexual violence. The doctor also admitted that J.L.N.'s risk for sexually re-offending is higher than someone who has never committed a sex offense, that he is moderately likely to commit a crime, and that "his tendency would be to not comply" with all conditions of a conditional discharge.
After reviewing all of the evidence, Judge Freedman concluded that:
[T]aking [Dr. Shnaidman's] testimony on its face value, and looking at [J.L.N.'s] history and looking at what happened when he was put out on conditional discharge, even without making a paraphilia diagnosis, based on [J.L.N.'s] anti-social personality disorder, which [Dr. Shnaidman] testified to was alive and well, his record shows he's predisposed to engage in acts of sexual violence even though these rapes were some time ago. His anger issues still exist. He's shown his inability to control himself on a much more recent basis when he was conditionally discharged.
So that I think that a finding that he continues to be a sexually violent predator could really be based on [Dr. Shnaidman's] testimony with regard to his anti-social personality disorder. But I don't rely on that. I rely on the testimony of Dr. Harris and Dr. Friedman and Dr. Paolillo. I am satisfied to find by clear and convincing evidence that [J.L.N.] does, in fact, suffer from a paraphilia on Axis-1, and an antisocial personality disorder on Axis-2.
That these conditions, which do not remit spontaneously  and which do not remit at all, but rather can only be controlled through treatment predispose him as his record shows to engage in acts of sexual violence. And if he were released now, he would be highly likely in a reasonably short period of time, certainly within the reasonably foreseeable future to be engaging in similar acts. You have serious difficulty controlling his sexually violent behavior so as to be highly likely.
I do not feel at this time that a conditional discharge is called for.
Our scope of review of a trial court's decision in a commitment proceeding 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 afford "special deference" to a committing judge's decision. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007); In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). We must defer to the committing judge's decision unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., Supra, 357 N.J. Super. at 63.
Based upon our careful review of the record, we are satisfied that no abuse occurred here. The record is more than sufficient to support the determination that J.L.N. suffers from mental abnormalities that predispose him to commit acts of sexual violence, and that it is highly likely that he will not control his sexually violent behavior and will re-offend. There is no doubt from the evidence that J.L.N. continues to meet the criteria for commitment under the SVPA.
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