January 16, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF N.H.Y., SVP-37-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-37-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Judges Reisner and Sapp-Peterson.
N.H.Y. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from an order of July 25, 2008, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm substantially for the reasons outlined in Judge Serena Perretti's comprehensive oral opinion of July 25, 2008.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior, such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132, aff'd, 173 N.J. 134 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment, despite treatment, are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32(a).*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see also W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is extremely narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A). We add the following comments.
On January 19, 2000, the State filed a petition for the involuntary civil commitment of N.H.Y. pursuant to the SPVA. At that time, the State also sought his temporary commitment to the STU. The predicate offense for which the temporary commitment was sought stemmed from his July 3, 1985 conviction for one count of criminal sexual contact of a female and one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), at knifepoint upon another fifteen-year-old female. He was sentenced to a twenty-year prison term. In July 2000, following a hearing, the court entered judgment declaring that N.H.Y. was a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment. Orders continuing his commitment were entered on June 28, 2001, February 27, 2002, and September 12, 2002. The September 12 order directed the STU to implement a Phase Five transitional program for N.H.Y. and to present the matter to the court for further review in one month. On October 16, 2002, the court continued his involuntary commitment to the STU but directed that the STU, with the assistance of "representatives from the Department of Corrections (DOC)[,]" enter him "into an outpatient treatment group, one day a week, at the Adult Diagnostic and Treatment Center [(ADTC).]" Thereafter, additional orders continuing his treatment were entered on September 4, 2003 and March 21, 2005.
N.H.Y. appealed the latter two orders. In an unpublished opinion, we affirmed the September 4, 2003 order but remanded the matter for the court's consideration of whether it should order the STU to gradually reduce the restrictions placed upon N.H.Y. in preparation for his potential discharge. In re the Civil Commitment of N.H.Y., No. A-877-03T2 (App. Div. December 30, 2004). Upon remand, the court denied N.H.Y.'s application for reduced restrictions and we affirmed the decision on appeal. In re the Civil Commitment of N.H.Y., No. A-4286-04T2 (App. Div. November 4, 2005). Additional orders continuing his commitment were subsequently entered on August 8, 2006, August 10, 2007, and July 25, 2008.
The hearing that preceded entry of the July 25, 2008 order under appeal was held the same day. Dr. Dean DeCrisce, a psychiatrist, and Dr. Jamie Canataro, a psychologist, testified for the State. No witnesses testified on behalf of N.H.Y. The parties stipulated to both doctors' qualifications and, subject to one correction in Dr. Canataro's report and certain hearsay objections, the reports of both doctors were also admitted into evidence without further objection.
The primary basis for Dr. DeCrisce's testimony was his own report dated July 24, 2008, which was based upon seventeen sources of information, including treatment records, psychiatric and psychological evaluations, an undated adult presentence report, the judgment of conviction, and Dr. DeCrisce's 130-minute interview with N.H.Y. He testified that the seventeen sources of information are the types of information he considers in gaining insight into the committee but that he forms his own independent opinion.
Dr. DeCrisce diagnosed N.H.Y. as suffering, under AXIS*fn2 I, from frotteurism, exhibitionism, and paraphilia. Under AXIS II, he diagnosed N.H.Y. as having an antisocial personality disorder. Dr. DeCrise opined that there was a very high risk that he would re-offend based upon N.H.Y.'s history of multiple sexual victims, "non-contact offenses, stranger victims, violent offenses, antisocial personality disorder, substance abuse, offenses after prior incarceration, early age of offending behavior, poor premorbid social functioning and potentially prior treatment dropout." In his opinion, N.H.Y. had not mitigated the risk factors through treatment efforts.
Dr. Canataro testified that she is a member of the Treatment Progress Review Committee (TPRC) panel within the STU and that the TPRC met with N.H.Y. to evaluate his progress on May 2, 2008 and issued a report dated June 26, 2008. She testified that the TPRC believed that N.H.Y. was making progress but that he needed to make more progress before advancing further. The TPRC unanimously voted to continue his treatment in Phase Three. The TPRC report noted that "[N.H.Y.] demonstrates an avoidant, defensive strategy, as evidenced by self sabotaging behavior in the past when it has appeared that his release or advancement in treatment is imminent." By way of example, Dr. Canataro testified that when N.H.Y. was court-ordered into Phase Five, although aware of what he needed to do to remain in Phase Five, he did not complete all of his written assignments and "continued to sexually act out" with three instances of exposing himself reported while in the STU. Specifically, the June 26, 2008 TPRC annual review report recommends that N.H.Y. "[a]attend recommended self-help groups (e.g., Relapse Prevention)" . . . and "[c]omplete other program requirements" including "sexual history, relapse prevention maintenance contract, [and] polygraphs." At the conclusion of the hearing, Judge Perretti found that the State had proved by clear and convincing evidence that N.H.Y. continues to be a sexually violent predator who has a high risk of re-offending. The court specifically found:
The issues before the Court are [N.H.Y.]'s current conditions and his current risk to re-offend. Continuing commitment may not be used as an excuse to punish for past crimes, but rather to treat for current conditions of a deviant sexual nature which continue.
[N.H.Y.]'s attorney made the point that the State psychiatrist, Dr. Dean DeCrisce, indicated that the 20[-]year[-]old conviction of the predicate offense and the two other offenses were a sufficient basis for his diagnosis. This statement is not contradicted and does not indicate that this is the end of Dr. DeCrisce's thinking.
The testimony was clear that it is Dr. DeCrisce's opinion that the conditions that the diagnosis continue -- they having been recently demonstrated while in custody and are current[ly] reinforced by behaviors, particularly the institutional infractions and his masturbating to certain fantasies that will be discussed hereinafter. His current condition has been established by clear and convincing proof and was uncontradicted.
It is made clear that [N.H.Y.]'s ability to control his sexual deviancies are the subjects of consideration by the witnesses who testified.
The State called as its witnesses Dr. Dean DeCrisce, a psychiatrist, whose report is Petitioner's Exhibit 2 in evidence. In addition, Dr. Jamie Canataro, a psychologist, testified. She was a member of the TPRC and wrote its report, which is Petitioner's Exhibit 4 dated June 26th, 2008. The TPRC report memorializes the occurrence of a meeting of the committee on May 7th, 2008.
Also, in evidence is Petitioner's Exhibit 5. This is a compilation of treatment notes beginning with July 2nd, 2007, and coming to the most recent entry on June 26th, 2008. The testimony of Dr. DeCrisce laid an adequate foundation for the admission of P-5 as business records of the institution accepted from the exclusionary rule.
A review of the notes contained within Petitioner's Exhibit 5 clearly provides support for the opinions expressed by both Dr. DeCrisce and Dr. Canataro.
The Court notes that this respondent has . . . for years been directed that it is necessary for him to complete certain necessary components of the program and it is clear that he is consistently resident [sic] to and refusing to comply. This respondent knows perfectly well what he needs to do to be released.
The testimony and exhibits presented by the State were clear and convincing. The testimony of the psychiatrist and psychologist is not contradicted.
The Court is clearly convinced, based upon the uncontradicted testimony, and the supporting materials, that the respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional, and volitional functioning, so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexual and violent behavior, as he has established by his repeated acts, even after being in custody, and after being institutionalized, both incarcerated and while committed, has continued to demonstrate sexually motivated infractions.
We are satisfied that the evidence supports the finding that N.H.Y. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 131-32.