On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-255-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
L.F. appeals from judgment entered on February 19, 2008, finding that he continues to be a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment ordered that L.F. remain committed to the Special Treatment Unit (STU) for the care, custody and treatment of sexually violent predators as he continues to be a substantial risk to the community. L.F.'s next review hearing is scheduled for February 5, 2009. We affirm.
L.F. is a fifty-nine-year-old male who has demonstrated sexually violent behavior spanning a period of thirty years.
L.F. has a history of six incidents which have led to sexual charges, including two against underage girls and two completed rapes of adult women. In his most recent offense, L.F. pled guilty to the charge that he pulled a twenty-year-old woman into a secluded area, held a broken bottle to her neck, and attempted to rape her.
Dr. Evan Feibusch, a psychiatrist who testified for the State, attempted to interview L.F. on February 14, 2008, but L.F. declined. Nevertheless, based upon information available from other evaluations, Dr. Feibusch testified he was able to render an opinion concerning L.F. within a reasonable degree of psychiatric certainty. He diagnosed L.F. "with Antisocial Personality Disorder, which in this case predisposes him to acts of sexual violence." Over the years, L.F. has been diagnosed with paraphilia not otherwise specified, impulse control disorder, polysubstance dependence including marijuana, alcohol, heroin, and cocaine, antisocial personality disorder, and schizoid personality. Additionally, L.F. has a history of drug possession while incarcerated, and has repeatedly refused to participate in drug screening at the STU, most recently in 2007. Although L.F. has shown improvement and is engaging in treatment, he needs further treatment before he can be safely discharged, even on a conditional basis.
Dr. Feibusch, expressed the opinion that L.F. is highly likely to commit additional sexually violent offenses. He bases his opinion on L.F.'s extensive criminal history of sex offending, his lack of impulse control, and his substance dependence, which is a significant factor in a committee's risk of recidivism. Dr. Feibusch also points out that L.F. has only just begun to engage in treatment and has been insufficiently treated to mitigate significantly his risk of re-offending.
L.F. was found to be in possession of pornographic material in 2005, and in 2006 discussed his ongoing fantasies of tricking women into having sex with him. The content of these sexual fantasies, involving prostitutes and using fake narcotics as a lure, is also of great concern. L.F.'s fantasies mirror the scenarios of the crimes for which he has been incarcerated. Dr. Feibusch acknowledged that L.F.'s age (approximately sixty) does reduce the risk of re-offending somewhat, "but not to the point where he falls below the threshold of highly likely to offend."
Dr. Feibusch's opinion, accepted by the court, was corroborated by treatment notes taken over the review period, and by Dr. Jamie Canataro, a psychologist who testified regarding the Treatment Progress Review Committee (TPRC) meeting with L.F. and their Annual Review Report. The TPRC met with L.F. on January 17, 2008 for approximately forty-five minutes.
L.F. appropriately greeted the panel members and he answered all their questions. At the time of the review, L.F. was in phase 2 of treatment, but the TPRC has recommended phase 3 in which the resident is expected to become more involved in treatment-related activities. Dr. Canataro acknowledged, as did Dr. Feibusch, that L.F. has shown an overall increase of participation over the past two years and that he is becoming more forthcoming in his explanation of the perception of the victims of his offenses. She noted that L.F.'s continuing refusal to participate in drug screens, whether it be due to his concern for false positive results or otherwise, was viewed as a lack of motivation in treatment. She diagnosed L.F. with Personality Disorder NOS with antisocial features, explaining that "these are lifelong enduring patterns, and through treatment we hope to control these behaviors, but they will always be there." Consequently, Dr. Canataro and the TPRC were of the opinion that L.F. had not yet "done enough in treatment to fall below the less than highly likely threshold."
Confinement by the State under this sexual recidivism standard "invokes a correlative statutory and constitutional duty of appropriate treatment where feasible, designed to permit ultimate release to the community." In the Matter of the Commitment of K.D., 357 N.J. Super. 94, 97-98 (App. Div. 2003). Treatment programs for persons committed under the SPVA are specifically tailored to eradicate violent sexual proclivities of the committee, which would eventually justify their discharge. Id. at 99. Discharge is appropriate where "the person is amenable to and highly likely to comply with a plan to facilitate the person's ...