April 24, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF M.K. SVP-355-04.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-355-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2009
Before Judges Axelrad and Parrillo.
M.K. appeals from an August 28, 2008 order of the Law Division continuing his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
M.K., born October 17, 1966 and currently forty-two years of age, was committed to the STU as a sexually violent predator in 2004. The predicate offense occurred on August 20, 1991, when 25-year-old M.K. molested a 4-year-old boy, C.G., in the bedroom of his West Berlin apartment. On the same day, after C.G.'s parents discovered what happened and called the police, M.K. admitted to police that he pulled C.G.'s shorts and underwear down, fondled his penis and performed fellatio.
On November 4, 1991, M.K. was convicted of first-and second-degree sexual assault, N.J.S.A. 2C:14-2a(1) and -2b, and criminal attempt, N.J.S.A. 2C:5-1 and 2C:14-2a(1). On May 15, 1992, M.K. was sentenced to an aggregate 20- year term, to be served at the Adult Diagnostic Treatment Center (ADTC) in Avenel.
Upon his scheduled release, the State petitioned for SVPA commitment and an order of commitment was entered on August 19, 2004, involuntarily committing M.K. to the STU. Annual review hearings resulted in orders continuing that involuntary commitment in 2005 and 2006. M.K. appealed the 2006 order, which we affirmed in In re Civil Commitment of M.K. SVP-355-04, Docket No. A-692-06T2 (App. Div. April 10, 2007). Thereafter, review hearings continued involuntary commitment in 2007 and 2008.
M.K. has a history of criminal behavior. At the time M.K. committed the predicate offense, M.K. had been on parole for a prior sexual offense that occurred on October 31, 1985. Then, 19-year-old M.K. performed cunnilingus on two seven-year-old girls, his step-sister T.K. and her friend, M.H.D. Having admitted to performing the acts on January 21, 1986, M.K. was convicted of two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a, and was sentenced to two concurrent indeterminate terms not to exceed 10 years at the Youth Correction Center in Yardville. According to M.K., when questioned about his sexual history for the ADTC evaluation of February 10, 1992, he also molested his step-sister six years earlier when he was thirteen and she was one. With regard to non-sexual offenses, M.K. reportedly told a representative of the Camden County Bail Unit that he was adjudicated delinquent of arson as a juvenile, having set fires when he was eight to ten years old, but no records of that offense have been found.
M.K.'s most recent review hearing occurred on August 21 and 28, 2008, at the close of which the trial judge entered an order continuing his involuntary civil commitment, and this appeal is from that August 28, 2008 order. At the hearing, M.K. presented no testimony on his behalf. The State, on the other hand, presented the testimony of Dr. Pogos Voskanian, a certified psychiatrist.
According to Dr. Voskanian, M.K. refused to be interviewed on August 14, 2008 in preparation for the 2008 review hearing.
As a result, Dr. Voskanian's recommendation to continue M.K.'s commitment was informed by various sources compiled in the years since M.K.'s commitment in 2004, including the data underlying diagnosis; treatment notes dating from August 6, 2007 to July 3, 2008; six-month resident reviews, the most recent dated May 2, 2008; Multidisciplinary Treatment Team (MTT) reports, the most recent dated July 21, 2008; and Treatment Progress Review Committee (TPRC) reports, the most recent dated August 18, 2008.*fn1
Based on these sources, Dr. Voskanian diagnosed M.K. with exclusive-type pedophilia. According to Dr. Voskanian, M.K. is exclusive type because M.K. is not attracted to adults in general, having had only one sexual encounter with an age-appropriate female, which M.K. stated he did not enjoy, while reportedly nineteen sexual encounters with children. In his treatment reports, M.K. admitted to feeling anxiety towards adults, which Dr. Voskanian opined discourages M.K. from participating in sexual relations with adults, and which he cannot overcome because his "sexual pathology is his sexual orientation."*fn2 Despite that assessment, Dr. Voskanian testified on cross-examination that M.K. had engaged in discrepant behavior on one occasion, when he had inappropriate sexual contact with a fellow adult STU resident. Dr. Voskanian testified that the victim could have had child-like qualities, and refused to draw any conclusions from M.K.'s discrepant behavior because he was unfamiliar with the victim's appearance, personality, or the details of the sexual assault.
As recent as the last TPRC report, dated August 18, 2008, M.K. admitted to having pedophilic arousal and masturbating to fantasies of children.*fn3 M.K. also admitted that his participation in treatment was lacking, that he could not discuss any interventions that he has learned or developed, that he was not motivated to learn from the modules, and that his desire to leave STU fluctuated.*fn4 Since the August 18, 2008 report, according to the progress notes that Dr. Voskanian reviewed, M.K. has not made progress in treatment because he still lacks motivation to participate. M.K. has been "non-productive" and is still in phase two treatment because he has been unable to address his issues of anxiety towards adults.*fn5 In individual therapy, begun April 2008, M.K. minimally participated, and consequently was not given any higher level of treatment based on his failure to address the previous level. Most recently, the TPRC, in its July 23, 2008 review of M.K.'s progress, found that M.K. appeared "withdrawn and not fully engaged in treatment programming" and that "[h]is excessive absences and lack of participation resulted in the incomplete on Victim Empathy module." Also, sometime before the review period, M.K. had been removed as a member of the therapeutic community due to insufficient participation.
Dr. Voskanian also diagnosed M.K. as having a personality disorder N.O.S. with schizoid traits, informed by M.K.'s tendency to avoid social interactions and be aloof and isolated.
According to notes from Dr. Cohen at STU, in 2007 and March of 2008, M.K. was prescribed Celexa, an anti-depressant medication used to decrease libido. Dr. Cohen's notes also indicated that M.K. did not approve of medication that would decrease his libido and stated that he felt he could control his impulses without it. Although the medicine was eventually tapered off because M.K. was apparently relying on it too much, Dr. Cohen disbelieved M.K., noting that M.K. "has consistently told farfetched story of medication while continuing to act out-out sexually."
Based upon his review of M.K.'s records, Dr. Voskanian opined that M.K. suffered from a mental abnormality or personality disorder that affected him either emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence and make it difficult to control his sexual offending behavior. Dr. Voskanian concluded:
[W]e do have a clearly documented history of continuous arousal. We do have clearly documented history of continuous discomfort with adults. We have a clearly documented history of him masturbating to the fantasy of children, attempting to change fantasy to adults unsuccessfully. Question of the alcohol abuse and marijuana abuse because of some inconsistencies in prior accounts.
All of this combined, I think markedly elevates the risk and further supported by prior history of even three formal charges and 19 reported victims . . . in the face of lack of relationships with adults. He remains at very high risk.
While M.K.'s risk of re-offending can be mitigated, Dr. Voskanian believed that mitigation has not occurred because M.K. has not benefited from treatment. Thus, according to Dr. Voskanian, M.K. posed a high risk to sexually re-offend in the foreseeable future unless his involuntary commitment was continued.
Judge Perretti issued her oral decision denying M.K.'s release on August 28, 2008. After thoroughly reviewing all of the treatment records and reports from STU, including Dr. Voskanian's impression of them, the judge found the State's evidence clear and convincing:
The conditions which [Dr. Voskanian] diagnoses do not simply go away. And this is particularly true in light of the exclusive nature of the respondent's deviance. The risk of re-offense "remains at very high level." The respondent has a history of continued arousal to children, down to his current masturbation to fantasies of children. The respondent has repeatedly acted upon his deviant arousal at least with 19 victims. He has clearly established his serious difficulty controlling his sex-offending behavior, according to the psychiatrist's testimony.
It is clear, based upon the respondent's history of repetitive offenses, that he, indeed, has serious difficulty controlling his sex-offending behavior. The testimony presented by the state and the state's exhibits are clear and convincing.
This court is clearly convinced that this respondent continues to be a sexually violent predator. He suffers from abnormal mental condition and personality disorder that combine to predispose him to commit sexually-violent acts. He clearly has serious difficulty controlling his sexually-violent behavior.
It is highly likely that the respondent will commit sexually-violent acts against prepubescent children within the foreseeable future if he is not continued in custody for further care and for the protection of the public. There will be a review in one year.
An August 28, 2008 order was entered continuing M.K.'s involuntary commitment to the STU as a sexually violent predator with review to be held August 7, 2009. This appeal follows.
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 132-33. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.
In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where 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 Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of August 28, 2008.