May 4, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF C.F. SVP-446-06
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-446-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Fuentes and Chambers.
Appellant C.F. was civilly committed under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. He now appeals, arguing that the State failed to prove, by clear and convincing evidence, that he suffers from a mental condition that makes him likely to engage in acts of sexual violence if not confined in a secured facility. Appellant also argues that the court failed to duly consider releasing him upon the condition that he receive a specific mode of treatment that curbs his pedophilic tendencies. We reject these arguments and affirm substantially for the reasons expressed by Judge Freedman.
C.F. is currently a fifty-year-old man with a history of sexually deviant behavior and pedophilic acts. His first documented*fn1 incident occurred in 1989; it involved a fourteen-year-old boy whom C.F. picked up as the child was walking home from a friend's house. According to the victim, C.F. abducted him, took him to a remote location, and began fondling him. The boy managed to flee by striking C.F. with a pair of pliers.
C.F. was eventually apprehended, charged and indicted with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; second-degree sexual assault, N.J.S.A. 2C:14-2c; and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He pled guilty pursuant to a negotiated agreement to fourth-degree criminal sexual contact, N.J.S.A. 2C:24-3b, and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced in December 1989 to a one-year term of probation, conditioned upon reporting to his probation officer, performing 100 hours of community service and participating in out-patient counseling.
According to the Gloucester County Probation Department, C.F. violated the conditions of his probation less than two months after he was sentenced. In the violation of probation report filed with the court, his probation officer charged that C.F. did not: (1) report as directed; (2) attend the out-patient counseling program; (3) complete the 100 hours of community service; or (4) appear at a scheduled departmental hearing.
The second incident occurred in 1992; this victim was a ten-year old boy. According to the police report, C.F. rode up on his motorcycle and approached the victim as the child was walking home. He offered the boy $20 to watch him masturbate. C.F. was charged with third-degree prostitution, N.J.S.A. 2C:34-1b(7) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He pled guilty pursuant to a negotiated agreement to third-degree prostitution, N.J.S.A. 2C:34-1b(7) and was sentenced to a four-year term of imprisonment, to run concurrent to an undisclosed term for violating probation. C.F. was thirty-four years old at the time.
The third incident occurred in June 1998. The victim was a twelve-year-old boy who, according to police reports, C.F. lured into his apartment on the pretext of helping C.F. move some furniture. Once inside the apartment, C.F. fondled the child. The molestation quickly escalated to C.F. performing fellatio on the boy. The police investigation discovered another child victim who alleged that C.F. had given him beer and cigarettes and let him watch pornographic movies. This boy also claimed to have seen other boys of similar age in C.F.'s apartment.
The police eventually charged C.F. with one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2c; two counts of third-degree promoting prostitution, N.J.S.A. 2C:34-1b(7); five counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of second-degree photographing a child in a prohibited sexual act, N.J.S.A. 2C:24-4b(4); and one count of fourth-degree possession of photographs of a child in a prohibited sexual act, N.J.S.A. 2C:24-46(5)(b). He pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1).
C.F. was examined at the Adult Diagnostic and Treatment Center (ADTC), and found to be a compulsive and repetitive sexual offender, thus falling within the purview of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. In the 1999 report prepared for the sentencing court by one of the ADTC staff psychologists, C.F. admitted to experiencing "masturbation fantasies for young boys, despite his arrest and incarceration for the [then] present offense."*fn2 The court sentenced C.F. to a term of ten years to be served at the ADTC.
As the end of his sentence approached, the ADTC treatment staff prepared psychiatric and psychological evaluations to determine C.F's eligibility for commitment under the SVPA. In a report dated September 1, 2006, Dr. Anna Rossi opined that C.F.'s prognosis was "poor" and he was "at high risk to sexually reoffend and should therefore be referred to the Special Treatment Unit ("STU") at the completion of his sentence.
In this report, Dr. Rossi provided a comprehensive review of C.F.'s psychiatric and substance abuse history. The report noted that C.F. failed to adhere to institutional directives, incurring numerous disciplinary infractions while at the ADTC. Dr. Rossi diagnosed C.F. as suffering from "Paraphilia NOS, Sexually Attracted to Adolescent Males." According to generally accepted actuarial predictors, C.F. presented a high risk of reoffending. Other ADTC staff therapists concurred with Dr. Rossi's assessment that C.F. remained a serious threat if released.
Against this backdrop, on December 7, 2006, the State filed a petition for civil commitment under the SVPA. The petition was supported by two clinical certificates. By order dated December 15, 2006, the court found probable cause to detain C.F. at the STU pending further review.
Judge Freedman considered the State's petition over a three-day hearing in which the State presented the expert testimony of a physician, Dr. Michael R. McAllister, and psychologist Dr. Natalie Barone. Both of these witnesses testified at length about C.F.'s psychiatric history. Although C.F. refused to be examined by Dr. McAllister, based on his review of treatment records, police and court reports, Dr. McAllister was able to diagnose C.F. as suffering from a sexual perversion, with a specific proclivity for post-pubescent teenage boys. In light of his lack of progress while at the ADTC, Dr. McAllister opined that C.F. was a high risk of committing another sexually violent crime if not detained at the STU.
Dr. Barone came to a similar conclusion. She was also unable to personally interview C.F. due to his refusal to meet with her. After describing in detail the information she relied on to form her opinion, Dr. Barone diagnosed C.F. as suffering from a deviant sexual pathology involving young boys. She believed the treatment he received at the ADTC was ineffectual. If not detained in a secured facility, Dr. Barone opined that C.F. presented a high risk to reoffend. C.F. chose not to testify or call any witnesses.
Judge Freedman found that the State had met its burden of proving, by clear and convincing evidence, that C.F. suffers from a mental condition that makes him highly likely to engage in sexually deviant behavior with young boys. Judge Freedman explained his findings and conclusions of law in a comprehensive, well-reasoned oral opinion delivered from the bench.
In this appeal, C.F. argues that the State did not meet its burden of proof, and that the court failed to consider releasing him upon the condition that he use the anti-antigen Lupron to supplement his therapy and reduce his sexual urges. This latter argument was not made before Judge Freedman. With respect to a conditional release, counsel for C.F. merely asked Judge Freedman to "put conditions on [C.F.] which would protect society while at the same time taking into account [C.F.'s] liberty interest in this case."
Our standard of review of the trial court's decision in this context is well-settled. The ultimate determination of a sex offender's risk to reoffend is reserved to the sound discretion of the trial court. In re G.B., 147 N.J. 62, 79 (1996). We are required to give the trial court utmost deference in its determination that civil confinement is warranted to protect the safety of the public and, in particular, the safety of those individuals previously targeted for abuse by the detainee. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re the Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).
The trial court's decision here is amply supported by the record. We thus affirm based on the reasons expressed by Judge Freedman in his oral opinion delivered on December 18, 2007.