On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-265-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Stern, Lyons and Newman.
R.X.V. appeals from his involuntary civil commitment to the Special Treatment Unit ("STU") pursuant to N.J.S.A. 30:4-27.24 to -27.38, the Sexually Violent Predator Act ("SVPA"). We affirm.
On July 27, 1999, R.X.V. pled guilty to second degree sexual assault of J.H., a nine-year-old boy and R.X.V.'s former neighbor, and was sentenced on January 7, 2000, as if for a third degree offense to four years in prison, to be served at the Adult Diagnostic and Treatment Center ("ADTC"), with community supervision for life thereafter. R.X.V., who had been clinically evaluated and identified as a sexually violent predator, had a sentence scheduled to "max out" on or about August 20, 2002.
On August 7, 2002, the State petitioned for the civil commitment of R.X.V. under the SVPA. Following an October 28, 2003, hearing before Judge Perretti, on November 6, 2003, R.X.V. was "committed to the State of New Jersey [STU], the secure facility designed for the custody, care and treatment of sexually violent predators" with a one-year review date. R.X.V. filed a notice of appeal on March 3, 2004.
In October, 2004, R.X.V. retained a private attorney to represent him on the appeal filed on his behalf by the Office of the Public Defender. The appeal was dismissed by this court on February 7, 2007, for the failure to file a timely brief. After a motion was filed on August 28, 2008, on behalf of R.X.V., this court on September 11, 2008, entered an order vacating the dismissal of the appeal, reinstating the appeal, accelerating the appeal and directing a scheduling order to issue forthwith. The Department of the Public Advocate, Division of Mental Health Advocacy, Alternative Commitment Unit, by Designated Counsel filed R.X.V.'s brief and appendix on October 22, 2008. The State filed its answering brief on November 17, 2008. The appeal was calendared for disposition on January 7, 2009.
At the civil commitment hearing on October 28, 2003, three witnesses testified. The State presented two expert witnesses during the hearing: Dr. Luis Zeiguer, M.D. ("Dr. Zeiguer") and Dr. Natalie Barone, Psy.D. ("Dr. Barone"). Dr. Paul Fulford, Ph.D. ("Dr. Fulford") testified on behalf of R.X.V. A summary of their relevant testimony follows.
Dr. Zeiguer testified that in preparing his report he relied on his interviews of R.X.V., which were recorded and occurred on October 26 and 28, 2002, "detective investigation reports, the victim's statements and presentence reports," as well as the transcript of one of R.X.V.'s phone calls.*fn1 Dr. Zeiguer also briefly interviewed R.X.V. the morning of the hearing. Dr. Zeiguer explained the importance of reviewing and relying on this type of information, which is generally relied on by experts in his field, because for pedophiliac offenses, self-report is unreliable given their investment in maintaining secrecy and thus, external reports serve as a more reliable source of information.
Dr. Zeiguer diagnosed R.X.V. with "pedophilia, male, non-exclusive", personality disorder, not otherwise specified ("NOS") and acknowledged R.X.V.'s prior diagnosis of bipolar disorder NOS with a history of depression.
Dr. Zeiguer based his pedophilia diagnosis on R.X.V.'s admitted molestation of two young boys and admitting arousal by it. Dr. Zeiguer testified that R.X.V. admitted to molesting his nephew for many years, even though never prosecuted for the offense in the State of Virginia. Dr. Zeiguer determined the affair with the nephew ended because of the nephew, not because R.X.V. lost interest. Dr. Zeiguer also testified that R.X.V. molested his neighbor, a hyperactive and developmentally disabled child, after volunteering to baby-sit him. Further, R.X.V. told Dr. Zeiguer he liked "hairless, pre-pubescent children who do not ejaculate." R.X.V. knew his sexually offending behavior was illegal.
In arriving at a personality disorder diagnosis, Dr. Zeiguer described R.X.V.'s "self-involved" behavior, his need to be the center of attention, appear successful and his "dramatical theatrical representations." Dr. Zeiguer described R.X.V.'s presentation of himself like "a butterfly"; a man who has evolved to discover his homosexuality, where pedophilia "was just his initial tempting footsteps," thus leading him to the path of happiness and bliss and precluding further pedophilia, therefore it was all worth it. Dr. Zeiguer indicated that R.X.V.'s self involvement results in his insensitivity "to other people's needs," as evidenced by R.X.V.'s sexual relationship with another inmate while in treatment.
Dr. Zeiguer acknowledged R.X.V.'s bipolar disorder based on information in R.X.V.'s records, but Dr. Zeiguer saw no symptoms of this disorder. Dr. Zeiguer also indicated that bipolar disorder does not always affect the libido, but if it does, it can increase or decrease one's libido.
Dr. Zeiguer testified that R.X.V.'s treatment at ADTC was considered a failure because R.X.V. "spent most of his time fighting the system." Dr. Zeiguer discounted reports that indicated R.X.V. made improvement while attending therapy pre-trial with Catholic Charities in 1999 and was a good candidate for outpatient therapy, because R.X.V. had never even admitted to the abuse at that time.
Dr. Zeiguer testified that he did not think R.X.V. would be able to control his sexually deviant impulses if released and indicated that pedophilia does not automatically correct itself. Dr. Zeiguer agreed that R.X.V. has "a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for controlled care and treatment."
Dr. Barone, an expert clinical psychologist, testified concerning her evaluation of R.X.V. In preparing her report, Dr. Barone relied on her October 24 and 25, 2002, interview of R.X.V., as well as archival documents identical to those used by Dr. Zeiguer. Additionally, Dr. Barone interviewed Dr. Main, who authored a March 2002 termination report but was no longer with ADTC after becoming the head of STU.
Dr. Barone performed a Static-99 actuarials test on R.X.V., and testified that this Static-99 score predicted a medium-low risk of re-offense. However, Dr. Barone found this risk level an "underestimation," because R.X.V.'s long term sexual molestation of his nephew in Virginia was not considered, which would have increased R.X.V.'s Static-99 score by several points. Dr. Barone also indicated that "the coding criteria for the Static" test precluded a showing that "the offender continue[d] to offend even after being previously sanctioned," referring to R.X.V.'s continued molestation of his neighbor while being investigated for sexually abusing his nephew in Virginia.
As such, Dr. Barone clinically adjusted her actuarial risk assessment based on R.X.V.'s dynamic risk factors which increased R.X.V.'s risk. R.X.V.'s risk factors, according to Dr. Barone, included: (1) "extremely deviant" pedophilia based on R.X.V.'s multiple young victims and "well ingrained" pedophilia based on the "forethought and energy" R.X.V. placed into offending; (2) bipolar disorder which could inhibit R.X.V.'s cognitive facilities that would otherwise control sexual acting out, incomplete and lack of motivation for treatment; and (3) compulsiveness, evidenced in part by R.X.V.'s blackmail and stalking of another inmate at ADTC who resembled R.X.V.'s victim profile.
Regarding R.X.V.'s treatment potential, Dr. Barone testified that there was no reason why R.X.V. could not benefit from treatment given his average intelligence. Additional intellectual and sexual testing on R.X.V. revealed such characteristics as narcissism, attention seeking, lack of insight, lack of responsibility and tendency to minimize sexual deviancy.
Dr. Barone diagnosed R.X.V. with "personality disorder NOS with narcissistic features," which is defined as "an inflated sense of self, a sense of entitlement, certain grandiosity" because R.X.V. has trouble looking past his own desires. R.X.V. was also diagnosed with pedophilia, defined as sexually deviant behavior upon children; however, Dr. Barone noted that R.X.V. goes beyond the definition by also having the urges that drive the behavior, based on his admitted "sexual attraction to prepubescent boys."
Based on Dr. Barone's conversation with Dr. Main, R.X.V.'s former therapist at ADTC, and ADTC reports, she found R.X.V.'s progress at ADTC "nonexistent."
Dr. Barone discussed R.X.V.'s description of his sexual offenses, including how he anticipated visiting the boys and what he would do with them, masturbating in advance, manipulating the boys so he could "carry out the deviant act," and then attempting to convince the boys he cared for them and his actions were not harmful. R.X.V. indicated he would have been "turned on" by other children if he knew he could have touched them and gotten away with it. According to R.X.V., he victimized these boys only because "he discovered he was homosexual." However, Dr. Barone disagreed with R.X.V.'s contention that he just woke up one day and began molesting children after discovering he was homosexual and had no "pre-existing arousal pattern," noting that "human behavior simply does not work that way."
Dr. Barone was also concerned about R.X.V.'s plans upon release, which included becoming involved in the community and volunteering, but did not include any type of sex offender therapy. Dr. Barone testified that this exemplified R.X.V.'s lack of motivation for treatment and his belief that he did not even need treatment.
Dr. Barone agreed that R.X.V. has "a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Dr. Barone indicated that "the best predictor of future behavior is past behavior" and R.X.V.'s "past behavior presents a worrisome picture." Dr. Barone believed R.X.V. would have difficulty controlling his urges were he out in the community, particularly when he was unable to do so while in a controlled setting, speaking of his relationship while at ADTC. However, Dr. Barone believed that even ignoring ...