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In re Civil Commitment of N.M.W.

January 8, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W. SVP-279-02.


On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-279-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 28, 2009

Before Judges Payne and C.L. Miniman.

Appellant N.M.W. appeals from a judgment entered April 1, 2009, continuing his civil commitment at New Jersey's 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.

N.M.W., born March 8, 1982, was first committed to the STU on December 19, 2002. In re Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004) (slip op. at 1), certif. denied, 182 N.J. 429 (2005). N.M.W. was arrested as a juvenile on March 10, 1995, and charged with three counts of conduct that would constitute the adult offenses of aggravated sexual assault and luring or enticing a child. Id. at 2. These charges were dismissed on the State's motion, although his "probation was amended to require that he 'cooperate with DYFS in counseling for sexual problems' and '[h]ave no contact with victim.'" Ibid. The following year, N.M.W. was charged on three separate occasions with conduct that would constitute the adult offenses of criminal sexual contact and simple assault. Ibid. The victims were three juveniles living with N.M.W. at the Woodbridge Child Diagnostic and Treatment Center (Woodbridge Center). Ibid. On August 28, 1996, the Woodbridge Center requested his detention at a juvenile detention center because he was "'physically aggressive, sexually aggressive and [making] terroristic threats.'" Id. at 3. The Family Part judge dismissed those charges without prejudice for six months on September 19, 1996. Id. at 3-4. Two evaluations diagnosed N.M.W. with emotional issues. Ibid.

N.M.W. was again arrested on December 22, 1997, for offenses committed against P.N. and R.N.W. Id. at 4. On that date, N.M.W. approached P.N. from behind, pointed a gun at her, forced her into a stairway of a building, and raped her. Ibid. Before fleeing the scene, N.M.W. punched, kicked, and choked her, then threw two bricks at her. Ibid. Later that day, N.M.W. approached R.N.W., robbed her, forced her to perform oral sex, and vaginally raped her. Id. at 4-5.

Jurisdiction of the Family Part was waived and the charges transferred to adult criminal court. Id. at 5. There, N.M.W. was charged with first-degree attempted murder, first-degree kidnapping, first-degree aggravated sexual assault, second-degree aggravated assault, third-degree terroristic threats, and fourth-degree possession of an imitation firearm for an unlawful purpose. Ibid. Pursuant to a plea agreement, N.M.W. pled guilty to one count of second-degree sexual assault and was sentenced to a five-year prison term with a fifty-one month parole disqualifer. Ibid. His maximum sentence was to expire in November 2002. Ibid.

On October 22, 2002, the State filed a petition for civil commitment under the SVPA. Ibid. After a commitment hearing on November 19 and December 18, 2002, the trial judge concluded that N.M.W. was a sexually violent predator suffering from a mental abnormality and personality disorder. Id. at 8. The judge found that the State had established the requisite criteria for civil commitment under the SVPA and, accordingly, ordered N.M.W. committed to the STU. Ibid. We affirmed the order of commitment on June 2, 2004. Id. at 33.

N.M.W.'s civil commitment to the STU was first continued on May 17, 2006, and we affirmed. In re Civil Commitment of N.W., No. A-4937-05 (App. Div. Jan. 22, 2007). His civil commitment was again continued on April 26, 2007, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4610-06 (App. Div. Nov. 15, 2007), certif. denied, 195 N.J. 418 (2008). The judge again continued N.M.W.'s civil commitment on April 16, 2008, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4434-07 (Nov. 18, 2008). The most recent annual review occurred on April 1, 2009.

At the April 1, 2009, hearing, the State called two witnesses. The first witness, Dr. Pogos Voskanian, a psychiatrist, testified as an expert without objection. Based on his evaluation of N.M.W. on March 11, 2009, Voskanian prepared a thirty-five page report upon which his testimony was based. He testified that N.M.W. has not progressed in treatment because "he is on [modified activity program] status all the time." Voskanian diagnosed N.M.W. with marijuana and substance dependence. He testified that such dependencies create a higher likelihood that an individual would "act-out in a sexually violent way when intoxicated." N.M.W. has not participated in substance-abuse treatment. Voskanian also diagnosed N.M.W. with paraphilia NOS, exhibitionism, and anti-social personality disorder. He reached two conclusions: (1) N.M.W. suffered from a mental abnormality or personality disorder which affected him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence; and (2) N.M.W. continued to pose a high risk of sexually reoffending in the foreseeable future unless he was confined to a secure facility for treatment. Voskanian acknowledged on cross-examination that N.M.W. has not struck staff members at the STU and there were no positive drug tests during the previous two years. Nonetheless, Voskanian opined that N.M.W. could not control his behavior in a way that would allow him to progress in treatment, particularly in light of N.M.W.'s disruptive behavior and various assaults on fellow residents.

The State's second witness was Dr. Rosemarie Valla Stewart, a psychologist who also testified as an expert without objection. Stewart, as a member of the Treatment Progress Review Committee (TPRC), reviewed the progress and treatment of N.M.W. Stewart prepared a TPRC report and testified as to its contents. Her testimony was also based on treatment notes regularly prepared by STU professionals. Stewart testified that N.M.W. continually refused to engage in the treatment process at the STU. She diagnosed N.M.W. with paraphilia NOS (non-consent), exhibitionism (provisional), impulse control disorder, anti-social personality disorder, cannabis dependence, and alcohol abuse. Stewart acknowledged on cross-examination that N.M.W. had participated in process groups during the previous year and enrolled in an anger-management module on one occasion. The TPRC recommended that N.M.W. remain in treatment and Stewart specifically testified that she thought it would be best for N.M.W. to remain in one location to create stability and consistency.

At the conclusion of the hearing, the judge found that N.M.W. "suffers from mental abnormalities and personality disorders." He noted that N.M.W. has "had many disciplinary infractions," at least ten of which were sexual in nature, and been on modified activity status "on and off... at the S.T.U. since 2002." He found it "very clear" that N.M.W. suffers from paraphilia NOS (non-consent), anti-social personality disorder, and exhibitionism (provisional) and that he had no remorse for his crimes and had made zero progress in treatment. Indeed, he found that N.M.W. "has a ...


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