December 18, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF E.C.L. SVP-181-01
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-181-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Reisner and Sapp-Peterson.
E.C.L.*fn1 appeals from an order entered on July 9, 2008, continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26.
[T]he State must prove that 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. [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]
The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
E.C.L. was initially committed to the STU in 2001, after serving his sentence for a 1994 sexual assault on a three-year old girl. During this violent incident, E.C.L. inserted a metal ratchet into the child's vagina. He was given a ten-year sentence to the Adult Diagnostic and Treatment Center (ADTC), and was committed to the STU after serving four years of that sentence.
We previously affirmed E.C.L.'s continued commitment to the STU in 2006. In re Civil Commitment of E.L., Docket No. A-3985-05 (App. Div. Nov. 21, 2006). We will not reiterate the history detailed in that opinion, relying instead on the evidence presented in the 2008 hearing which gave rise to this appeal.
During an evaluation to determine whether he should be sentenced to the ADTC, E.C.L. disclosed a preoccupation with young girls and admitted to having fondled his six and seven year old nieces. However, he later denied this activity, claiming that he only admitted it to increase his chances of being placed in the ADTC because he was afraid of being incarcerated in the regular prison population. Once he was committed to the STU, he exhibited a pattern of alternating participation and withdrawal from therapeutic programs. He also was disciplined in 2000 for exposing his genitals to a female therapist during a group therapy session.
At his 2008 hearing, the State presented testimony from Dr. Rosemary Stewart, a psychologist, and Dr. Roger Harris, a psychiatrist. Both of these expert witnesses testified that E.C.L. showed a pattern of sabotaging his own progress in therapy. Periods of initial progress in therapy groups would be followed by withdrawal from participation. He also refused to take polygraph tests aimed at determining whether he was truthful in disclosing the molestation of his nieces or whether those were fabrications. Both experts testified that E.C.L. suffered from antisocial personality disorder as well as substance abuse, and anger which manifested itself in sexual violence. E.C.L. had not adequately addressed any of these problems and, as a result, was at high risk to re-offend if released.
E.C.L. presented testimony from Dr. Barry Katz, a psychologist. Dr. Katz opined that E.C.L. did not present a high risk of re-offending, because he had only committed one prior sex crime and because, according to Dr. Katz, he was not a compulsive and repetitive sex offender. Dr. Katz believed that E.C.L.'s primary issues were anger and substance abuse and that these could safely be addressed in a residential drug treatment program.
In a comprehensive oral opinion placed on the record on July 9, 2008, Judge Perretti did not find Dr. Katz's testimony believable. Accepting the testimony of the State's experts, she concluded that E.C.L. had made insufficient progress in therapy and showed a pattern of participating in and then withdrawing from treatment.
He had not addressed his substance abuse or the anger which was such an important factor in the 1994 sex assault. Additionally, his "poor participation" in the STU programs made him unlikely "to comply with any conditions of discharge" should he be released from the STU. As a result the judge was "clearly convinced that the respondent continues to be a sexually violent predator" who was "highly likely to commit sexually violent acts within the foreseeable future if not confined for further treatment."
On this appeal, our review of Judge Perretti's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge Perretti's factual and legal conclusions, or her decision to credit the testimony of the State's expert witnesses instead of E.C.L.'s expert. We affirm substantially for the reasons stated in her oral opinion, which is supported by substantial, credible evidence.