April 24, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF V.A.M. SVP-201-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-201-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2009
Before Judges Axelrad and Parrillo.
V.A.M. appeals from an October 24, 2008 judgment continuing his involuntary 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.
V.A.M. was born on June 16, 1966, and has been involuntarily committed under the SVPA since January 14, 2002.
V.A.M. committed the predicate offense while attending outpatient sex offender counseling in accordance with the conditions of his parole for prior sexually violent crimes. Regarding those earlier offenses, on July 20, 1988, V.A.M. sexually assaulted Z.C., a six year old girl, whom he was baby-sitting, by ordering her to pull down her pants and panties and ejaculating between her legs. V.A.M. also admitted having ejaculated on Z.C.'s panties another time. As a result, he was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On November 29, 1988, V.A.M. pled guilty to one count of second-degree sexual assault and on February 16, 1989, was sentenced to a ten-year term of incarceration. He was released on parole on February 14, 1991.
The predicate offense for which V.A.M. is currently committed occurred on April 9, 1992, when V.A.M. sexually assaulted D.G., a twelve-year old girl, by anally penetrating her. As a result, V.A.M. pled guilty to one count of aggravated sexual assault and was sentenced to a fifteen-year term, with a five-year mandatory minimum. Although he had been found to be a repetitive and compulsive sex offender and eligible for sentencing to the Adult Diagnostic and Treatment Center (ADTC or Avenel), he was sentenced to State prison in accordance with the terms of the plea agreement.
Following completion of his sentence, the State moved for V.A.M.'s commitment under the SVPA. A temporary order of commitment was entered on September 25, 2001, followed by an order of commitment on January 14, 2002. Further review hearings were conducted on September 30, 2003; May 12, 2005; December 1, 2005; and June 19, 2006, at which times V.A.M.'s commitment was continued. V.A.M. appealed from the September 30, 2003 and June 19, 2006 orders, and we affirmed. IMO Civil Commitment of V.A.M., A-1650-03T2 (App. Div. October 13, 2004); IMO Civil Commitment of V.A.M., A-5766-05T2 (App. Div. February 15, 2007).
V.A.M.'s most recent review hearing took place on October 24, 2008, and resulted in an order of commitment on October 24, 2008, from which this appeal is taken.
V.A.M. was not present at this review hearing. The only witness to testify was the State's expert, Dr. Pogos Voskanian. On September 30, 2008, Dr. Voskanian attempted to interview V.A.M. in conjunction with his upcoming review hearing, but V.A.M. refused to be interviewed. Dr. Voskanian had unsuccessfully tried to interview V.A.M. twice before. Consequently, Dr. Voskanian relied on documents and reports in V.A.M.'s file, which dated back to 2001. Dr. Voskanian diagnosed V.A.M. with the following: Axis I (pedophilia, attracted to females, non-exclusive type; mood disorder NOS (as per history); alcohol dependence in controlled environment); Axis II (personality disorder NOS (as per history)); Axis III (history of undescended testicle, history of blackouts, history of seizures, overweight, high cholesterol, S/P surgery for inguinal hernia, Diabetes Mellitus type II, hypertension); Axis IV (moderate); Axis V (20).
Dr. Voskanian diagnosed V.A.M. with pedophilia because V.A.M. "disclosed and related very strong pedophilic urges over [the] course of time" and confessed having a wet dream about one of his victims prior to her assault. According to Dr. Voskanian, V.A.M. has not made progress in treatment, and there is no expressed insight. V.A.M. also "has a history of heavy alcohol use[,]" but is not participating in treatment for alcohol dependence, such as attending Alcoholics Anonymous (AA) meetings or self-help groups.
Dr. Voskanian diagnosed V.A.M. with Axis II personality disorder not otherwise specified by history, because V.A.M. has a pattern of indifference and resisting treatment. The expert explained that, "I do believe that there is a personality dysfunction or characterological dysfunction that he's still in Phase 2, unmotivated." Dr. Voskanian's diagnosis was consistent with previous diagnoses by others, with the exception that Dr. Voskanian did not specify narcissism or passive-aggression, because he "did not have a firsthand experience with [V.A.M.]."
Dr. Voskanian explained that personality disorder and pedophilia are not conditions which spontaneously remit, and that, through treatment, the affected person learns not to act out on the impulses that come from these disorders. However, while V.A.M. has been exposed to treatment for pedophilia, he did not benefit due to his resistance to treatment. V.A.M. is currently not taking any type of psychotropic medicine for these conditions.
In Dr. Voskanian's opinion, several factors elevated V.A.M.'s risk to sexually re-offend. The conditions of pedophilia, personality disorder and alcohol dependence, all of which have not been sufficiently treated, elevate the risk that V.A.M. will re-offend, affecting him "emotionally or cognitively or volitionally so as to still predispose him to sexual violence[.]" Dr. Voskanian concluded that V.A.M. still has serious difficulty controlling his sexual offending behavior.
For Dr. Voskanian, it was significant that V.A.M. committed the predicate offense while on parole for a previous sexually violent offense, because "the intensity of the urge that, despite knowledge of the wrong, that despite knowledge of the consequences, that despite knowledge of likely being incarcerated, he could not refrain from pedophilic act[s]." Furthermore, based on Dr. Voskanian's review of V.A.M.'s July 31, 2008 Treatment Progress Review Committee (TPRC) report, there has been no treatment progress. As noted, V.A.M. is currently in Phase 2 of treatment and "not doing anything." He is not self-disclosing in group, "just passively sit[ting] there."
Following the close of evidence, Judge Perretti issued an oral decision denying V.A.M.'s release on October 24, 2008. Supporting this ruling, Judge Perretti noted V.A.M.'s resistance to treatment; lack of participation in therapy group; and that he "tends to dwell on victim-of-the-system issues which interferes with his progress." Based on the record proofs, including a series of treatment plan status reviews (dated February 15, 2008, February 19, 2008, and August 21, 2008) indicating that V.A.M. had made no progress for any of the problems listed for attention, no higher level of treatment phase was recommended. Judge Perretti concluded that V.A.M. is "quite knowingly resisting engagement in treatment," and, "his participation is frequently described as merely minimal."
Judge Perretti also held that the diagnosis of pedophilia was "apparent from the respondent's history of convictions and his admissions of pedophilia arousal made at the time he was evaluated for sentence to the ADTC." Echoing Dr. Voskanian's testimony, the judge noted that V.A.M. cannot resist his pedophilic urges as demonstrated by his committing the second of his two offenses leading to conviction while on parole. She also cited the fact that V.A.M. has not displayed empathy nor remorse for the crimes committed, and that his pedophilia, combined with his mood disorder NOS by history, alcohol dependence, personality disorder NOS by history, elevates the risk that V.A.M. will act upon his pedophilic urges. The judge concluded: "The risk of re-offense remains undiminished since commitment . . . [and] remains high." Finally, Judge Perretti held that, [t]he court is clearly convinced that this respondent continues to be a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that influences his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts.
He has serious difficult controlling his sexually violent behavior as he established in the community by re-offending shortly after coming out of prison serving a sentence for a prior sexually violent offense against a six-year-old girl.
It is clear that this respondent is highly likely to commit sexually violent offenses within the foreseeable future if not continued in commitment for further treatment. There will be a review in one year. This respondent has knowingly disengaged himself from treatment and is clearly resisting therapy.
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 October 24, 2008.
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