October 13, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.T., SVP-385-04.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-385-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Fisher and Sapp-Peterson.
C.R.T. appeals from a January 9, 2009 order continuing his commitment to the Special Treatment Unit (STU), with a future review date of October 7, 2009, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons stated by Judge Freedman in his comprehensive oral opinion placed on the record on October 31, 2008.
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 re-offend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
C.R.T. is a three-time convicted sex offender. In 1985 he pled guilty to second-degree aggravated sexual assault for molesting and impregnating his fifteen-year-old daughter, who subsequently received an abortion. The court imposed a seven-year custodial term with a five-year period of parole ineligibility. Following his release from prison, he was again arrested on charges of aggravated assault arising out of the digital penetration of his girlfriend's seven-year-old daughter. While acknowledging that he touched the victim's vagina, he explained that he did so at her request to assist her in applying vaginal ointment in an area where she had a rash. The victim's injuries included vaginal bleeding, a hymenal tear and a laceration near her cervix. A jury found defendant guilty of second-degree sexual assault and, on July 12, 1991, the court sentenced defendant to a four-year custodial term. His last offense was committed in June 1998 and stemmed from his digital penetration of the seven-year-old daughter of another girlfriend. He pled guilty to second-degree sexual assault and was sentenced to an eight-and-one-half-year custodial term with a five-year period of parole ineligibility.
C.R.T. refused to participate in the sex offender treatment program at the Adult Diagnostic Treatment Center (ADTC). In 2004 when his release from prison was imminent, the State initiated civil commitment proceedings, resulting in an order of temporary commitment. Following a later trial, the court entered an April 27, 2005 order classifying C.R.T. as a sexually violent predator in need of involuntary civil commitment pursuant to the SVPA. Although a review hearing was scheduled for the following year on April 6, 2006, C.R.T. executed a waiver of the review hearing until his direct appeal was decided. The direct appeal of his commitment was upheld by this court on November 16, 2006. In re the Civil Commitment of C.R.T., A-4659-04T2 (App. Div. November 16, 2006).
After a number of adjournments, at the request of both the State and the Office of the Public Defender, that spanned just over one year, the court conducted a review hearing. The State produced two witnesses: a psychiatrist, Dr. Gleacher; and a psychologist, Dr. Canataro.
Dr. Gleacher, in addition to reviewing the Treatment Progress Review Committee's (TPRC) report and other records, also interviewed C.R.T. She testified that C.R.T.'s history reflected deep-seated impulses and that he was unable to control his attraction to young girls. Dr. Gleacher also found that C.R.T. was in denial as to his condition and that his personality disorder with antisocial and narcissistic traits affected his ability to engage in treatment. She diagnosed C.R.T. as suffering from pedophilia, sexually attracted to females, non-exclusive type, personality disorder, not otherwise specified (NOS), with narcissistic and antisocial traits. While acknowledging that he had been actively engaged in sex offender specific treatment during the previous twelve months and that he was forthcoming about his substance abuse, Dr. Gleacher opined that he continued to struggle with his ability to openly discuss his arousal other than to characterize situations where a young girl would be in his presence as "dangerous" and describing his arousal as a "Monster." She opined that he was highly likely to sexually re-offend based upon his repeat offender status with multiple victims, including "sexual intercourse with his own daughter." She explained the fact that C.R.T. had adjusted well in structured environments such as prison and the STU was not inconsistent with her opinion that he was highly likely to re-offend:
[M]any people with antisocial personality disorder can adapt quite readily to a new environment and figure out the best way to make it through. And that's their -- and people with antisocial personality just are typically self-serving and figure out ways to make it the best that they can for themselves. And within an institution, like a prison or a place like this, you're going to do a lot better if you can keep yourself in control.
Dr. Canataro, in addition to being a psychologist, was also a member of the TPRC. She testified that the TPRC evaluated C.R.T. during the preceding twelve months and, based upon their evaluation, they made treatment recommendations. She explained the evaluation process consists of reviewing treatment notes, treatment plans, police reports, victims' statements, and an interview with the resident. She indicated that after the TPRC conducted its evaluation, it recommended that C.R.T. be promoted to Phase Three. She described Phase Three as being "beyond the rapport-building phase, and [meaning that] he is now into learning core treatment concepts. So, he's going over his sexual history offenses, going over his arousal patterns, his cycles, et cetera."
Dr. Canataro testified that C.R.T. was an active participant in treatment, giving and receiving feedback, but noted that during the TPRC's interview with him, "there were some general inconsistencies, minimizations," upon which she expounded in detail:
For example, he called the [seven]-year-old girl, one of his victims . . . he said that she was dressed -- she was a promiscuous type. So, things like that. He did -- also for one victim, he denied digital penetration. And the official record . . . states that he put his finger inside her privates. So, that does look like . . . an inconsistency right there.
Dr. Canataro also diagnosed C.R.T. as suffering from pedophilia, sexually attracted to females, non-exclusive type and personality disorder NOS. As to the latter diagnosis, she opined that
[C.R.T.] demonstrates . . . a long-term maladaptive pattern of pervasive disregard for the well-being of others. . . . [H]e consistently demonstrates impaired impulse control, lack of empathy towards others, and also just the -- with the cognitive distortions, he consistently demonstrates as well as his non-sexual offense history.
Additionally, she diagnosed substance abuse, with drugs of choice being cannabis, cocaine and alcohol. She explained that C.R.T. told the TPRC that when he used these substances he gained courage to offend against his victims.
C.R.T. testified on his own behalf. While acknowledging that he molested his biological daughter, he continued to deny that he impregnated her, stating that following his interview with the TPRC, he spoke to his daughter, who told him that "she wasn't -- wasn't pregnant by [him], didn't have no abortion or anything." He discussed a discharge plan that he developed that included receiving assistance from the Veterans' Administration and utilizing a certificate he received from Culinary Arts to help him locate a job. He indicated that his family would serve as his support system. He also explained that when he had the recent arousal after watching a television commercial, he reached out for help by discussing the matter with a treatment counselor.
In a comprehensive oral opinion, Judge Freedman determined that C.R.T. should continue to be committed to the STU. The judge, in discussing the evidence presented, found:
So, the treatment notes confirm the testimony of both of the [S]tate's experts that [C.R.T.] is progressing, but they also confirm that [C.R.T.] has not made the necessary progress with regard to his arousal and -- and how he can . . . take control of it to justify a discharge at this time.
Given the nature of his offending, [C.R.T.] has a very serious record. It extends over a long period of time. There's no question in my mind that [C.R.T.] suffers from a mental abnormality and a personality disorder. His record and his own statements clearly show that they predispose him to engage in acts of sexual violence.
And he would have at this point, he would still have serious difficulty controlling that, particularly -- and if he went back to substance abuse, which he has taken some treatment for, but not much, not a lot . . . then it would be -- it would be even worse -- the chances will be even greater that he would re-offend.
So, I think that I credit the testimony of these experts. I think there is a substantial basis for their . . . opinion in the record upon which they rely. And I think that taking into account the balancing test of W.Z., the nature of what [C.R.T.] tends to do is extremely serious. He has a very, very high probability that he will do it again if he were to be released. And so for on that -- in that regard, I don't think there's any question he's dangerous.
I find that if he were released now, he would - - despite . . . his positive treatment, he has not yet gotten to the point where he has reduced his dangerousness to the point where he can be considered for a conditional discharge. . . .
I think at this point he still is highly likely[,] based on what I've heard from both experts[,] that he would have a serious difficulty controlling his behavior if he was released, particularly in relation to his substance abuse. And that within the reasonably foreseeable future, if he were released, he would keep committing another one of these offenses. And for those reasons, I'm continuing his commitment.
I think that he should be commended for the attitude that he's taking with regard to treatment and that he should . . . be encouraged to continue it. And, hopefully, in the not too distant future -- I know I expressed this view back in 2005 I think, but I think the notes, particularly the most recent notes, show that [C.R.T.,] he has not yet gotten it. He still needs more work before this court would be -- would feel confident that his risk of offending is below the highly-likely standard that justifies commitment.
On this appeal, our review of Judge Freedman's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2002), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge Freedman's factual and legal conclusions, including his cogently-explained credibility determinations.
While we acknowledge the record reflects that C.R.T. has made progress over the past four years that he has spent in STU, progress that is significant given his initial refusal to participate in treatment that could have been afforded to him at the ADTC during his incarceration on the predicate offense, he has not progressed to the point where he can be released without presenting a high risk of re-offense. We affirm substantially for the reasons stated in Judge Freedman's October 31, 2008 oral opinion.
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