February 3, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF T.A.R., SVP-13-99.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-13-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 12, 2010
Before Judges Parrillo and Lihotz.
T.A.R. appeals from an August 11, 2009 judgment continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument before us, T.A.R. argued the State failed to produce sufficient evidence that he currently poses a danger as a result of a mental abnormality or personality disorder, which makes him likely to engage in further acts of a sexually violent nature. We disagree and affirm.
Under the SVPA, the involuntary civil commitment of an individual may be ordered when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a). An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "has been convicted . . . of a sexually violent offense . . . and 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. The Court has explained the standard for involuntary commitment under the SVPA, as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
With these standards in mind, we review T.A.R.'s criminal history and the expert testimony presented by the State at the commitment hearing.
T.A.R., now age fifty, was incarcerated following a 1994 guilty plea and conviction for two counts of second-degree sexual assault against his daughter, for which he was sentenced to two concurrent eight-year prison terms. T.A.R. was ordered to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. T.A.R.'s temporary civil commitment was ordered on September 29, 1999. Final judgment was entered on May 16, 2001, which T.A.R. appealed. We reversed and remanded for the trial court's consideration of the newly announced standards in In re Commitment of W.Z., 173 N.J. 109 (2002). Commitment was ordered, and T.A.R. became one of the first committees in the STU. The judgment of commitment has been reviewed and confirmed on December 18, 2000; May 14, 2001; May 7, 2002; May 2, 2003; April 14, 2004; March 28, 2005; March 3, 2006; March 8, 2007; and February 13, 2008, which was affirmed on appeal.
A review hearing was held on February 5, 2009, and the court ordered T.A.R.'s continued civil commitment. T.A.R. filed a notice of appeal. However, when he sought a transcript for purposes of appeal, it was discovered "the [tape] machine must have been broken and it wasn't transcribed." Given that six months had passed since that hearing, the State consented to vacate the prior judgment. This appeal challenges the judgment entered following trial on August 11, 2009.
The facts surrounding the predicate offense are these. The child victim disclosed to a teacher and cousin that she had been sexually abused by T.A.R. on numerous occasions between 1983 and 1986. When the victim was age three, T.A.R began to "rub her vagina on the outside" when bathing her. At age four, the abuse escalated. T.A.R. began "touching the victim's vagina with his penis" and eventually engaged in intercourse. In her statement to police, the victim described "gray pudding came out of his penis and stayed on him." The assaults ceased sometime in 1985 only because the child and her mother moved out of state. However, in 1986, T.A.R. again assaulted his daughter each of the six times she visited with him. The victim detailed these assaults, explaining T.A.R. took both of their clothes off, then began to "rub her vagina with his hands" and perform vaginal intercourse.
T.A.R. also has an extensive non-sexual criminal history, including shoplifting, breaking and entering, burglary, theft, receiving stolen property, larceny, contempt of court, violations of probation, and drug-related offenses. Between 1976 and 1993, he had twenty-one juvenile and adult arrests in at least two states. In 1990, he was charged with his first sexual offense in Sampson County, North Carolina, where he received a three-year suspended sentence and three years of probation, after molesting the ten-year old daughter of a girlfriend. T.A.R. initially denied the incident but, while in treatment, has twice admitted his conduct to interviewing psychiatrists, including a 1999 interview when he stated the victim was "playing with him and he went with it." In 1992, T.A.R. was arrested and incarcerated for violating his probation. Upon release, he was arrested on a fugitive charge and extradited to New Jersey for the predicate offense.
While confined in the ADTC, T.A.R. committed a wide range of institutional infractions, including possession of marijuana, "failure to obey orders" and extortion, resulting from his attempts to "strong arm" commissary items from other inmates. T.A.R.'s infractions at the STU center on his possession and use of marijuana and adult pornography DVD's. Two other incidents of note, however, occurred in 2008. In January of that year, T.A.R. shoved a female corrections officer conducting a search of his room. In October, authorities intercepted a package sent to T.A.R. that contained a crack pipe.
During the review hearing, the State presented numerous exhibits without objection, including documents introduced during the February 13 hearing. In addition, Dean DeCrisce, M.D., a psychiatrist, testified as the State's expert. Defendant neither testified nor presented any other evidence.
Dr. DeCrisce explained T.A.R. declined to be interviewed in preparation for the hearing on February 3 and July 28, 2009. Therefore, he conducted a thorough review of T.A.R.'s records, including his criminal history, past evaluations and treatment to render his diagnosis and opinion. Based on T.A.R.'s multiple sexual assaults of young girls, his repeated arrests and institutional infractions, his long-standing refusal to cooperate with or participate in treatment, and his admitted continued use of alcohol, marijuana, and crack cocaine, Dr. DeCrisce diagnosed T.A.R. with pedophilia and anti-social personality disorder and a possible diagnosis of substance abuse.
In reaching his diagnoses, Dr. DeCrisce reviewed T.A.R.'s sex offender treatment history. He also considered the possible existence of continued substance abuse, based on T.A.R.'s "intermittent [to] heavy use of marijuana and crack cocaine." T.A.R. refused to participate in therapy at the ADTC and, between 1997 and 1999, was formally classified as a "treatment refuser." Thereafter, he developed "somewhat of a pattern" --he "participates for a brief period of time and then gets in trouble . . . receives an institutional infraction, and then removes himself from treatment[.]" The repeated disciplinary infractions and T.A.R.'s corresponding retrenchment from therapy have significantly hampered his treatment progress. In his nearly ten years at the STU, he has completed only two modules in relapse prevention, and one each in anger management, and arousal reconditioning and family origin. Generally, he displays poor motivation and has yet to engage in substance abuse treatment.
T.A.R.'s greatest level of group therapy participation occurred in 2001, when he admitted to the existence of a third victim, a twelve-year old girl who was the daughter of a woman he was dating. Unfortunately, T.A.R. would not discuss the event again for eight years, only recently raising it in June 2009 during a "floor" session "in which he  described a long standing attraction to children." In March 2007, the STU Treatment Progress Review Committee (TPRC) ordered T.A.R.'s treatment status "reduced" to Phase I. An April 2008, the TPRC report did not recommend he advance to the next phase.
In evaluating whether T.A.R. posed a risk if released, Dr. DeCrisce acknowledged that on the Static-99 actuarial assessment T.A.R. scored a two, suggesting he poses a low-risk of reoffense. However, in his opinion, the test understates the degree of risk in a situation such as this one, where the clinical notes evince a much greater risk. First, Dr. DeCrisce noted the Static-99 results are contradicted by the fact that T.A.R.'s second offense occurred notwithstanding a prior period of incarceration imposed after his first offense.
Second, the treatment records show there is no basis to conclude any mitigation of risk resulted from T.A.R.'s stay at the ADTC and STU. Only a limited degree of progress occurred over an extensive period of time due to T.A.R.'s resistance to treatment. Dr. DeCrisce testified the "template for attraction" begins at five or six years old, is set by mid-adolescence and "stays with the person" throughout their life. In fact, T.A.R. only recently admitted to triggering behaviors, including long-term fantasies about young girls, and his use of relationships with older women to "gain access" to their children.
Third, T.A.R. demonstrates he is not able to control his impulsivity, as illustrated by the 2008 assault of a female corrections officer and infractions for possession of pornography. Finally, Dr. DeCrisce suggested T.A.R.'s failure to address his substance abuse was important, as drug use is "one of the top three contributors to sexual reoffense . . . . Because intoxication clearly disinhibits one, and allows one to act out on thoughts and feelings that one would not be able to . . . otherwise."
Thus, the lack of effective therapy to control the offending behavior, combined with the additional factors of drug use, treatment rejection, and impulsivity, strongly counseled against the "spontaneous" mitigation of T.A.R.'s risk of reoffense was unlikely. Dr. DeCrisce concluded that T.A.R. suffers from a mental abnormality and a personality disorder affecting his emotional, volitional, and cogitative capabilities such that he is "highly likely to sexually reoffend" if released from a controlled setting.
Counsel for T.A.R. argues that, in light of the fact his client had admitted his sexual offenses and had avoided any violence or inappropriate contact with children since his incarceration, his degree of participation in treatment is irrelevant. Suggesting the SVPA statute does not require a committee to "complete treatment, or even have to perform treatment at a certain level in order to earn the right to be released," T.A.R. relies upon State v. Fields, 77 N.J. 282 (1978), to support his position that a committee merely needs "to change the circumstances from when the commitment began."
After reviewing T.A.R.'s criminal and treatment history, and crediting the State's expert uncontroverted testimony, Judge McLaughlin rejected T.A.R.'s argument in support of his release, stating:
From the evidence presented I find that the State has proved by clear and convincing evidence that [T.A.R.] is a sexually violent predator, by his conviction for sexual assault. That he suffers from an abnormality, . . . in particular pedophilia, and anti-social personality disorder. And that he presently has serious difficulty  controlling his sexual violent harmful behavior.
Based upon his . . . continued use of pornography, his acknowledgment in group, . . . that he has fantasies of young girls . . . . The fact that he continues to try to use substance[s] [and] continues to abuse marijuana even in a controlled . . . situation.
Substance abuse is a factor for sexual predator's likelihood to reoffend. I find, from the unrefuted testimony of Dr. DeCrisce, that [T.A.R.'s] difficulty in controlling his harmful sexual behavior, is such, that it is highly likely that he will reoffend in the reasonably foreseeable future.
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 Fields, supra, 77 N.J. at 311). 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 reject T.A.R.'s argument that he need not engage in therapy as the passing of time has eliminated the need for his continued civil commitment. "[L]egislative findings clearly make paramount the SVPA's intention to protect society through the 'commitment of those sexually violent predators who pose a danger to others should they be returned to society.'" In re Commitment of J.M.B., 197 N.J. 563, 574 (2009) (citing N.J.S.A. 30:4-27.25(c)). "Commitment . . . is contingent on proof of past sexually violent behavior, a current mental condition and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003) (citing W.Z., supra, 133 N.J. at 127). It is clear the State's proofs meet this standard. The expert testimony presented that the mental abnormality, pedophilia, is unlikely to resolve, and only active participation in substance abuse counseling and sex offender treatment to learn coping techniques will abate the risk reoccurrence of T.A.R.'s sexually harmful behavior.
Based upon our review of the record, we conclude the judge's findings, regarding T.A.R.'s current mental condition and demonstrated inability to adequately control his sexually harmful conduct, are amply supported by substantial credible evidence presented at the review hearing. J.P., supra, 339 N.J. at 461; D.C., supra, 146 N.J. at 61. Accordingly, we affirm the judgment continuing T.A.R.'s civil commitment.
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