February 11, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF E.C., SVP 14-99.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 14-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 12, 2010
Before Judges Parrillo and Lihotz.
E.C. appeals from a September 30, 2009 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
E.C., born in 1952, has a longstanding pattern of sexually violent and other criminal offenses. Among other things, E.C. has been found guilty of raping an eighteen-year-old woman at knifepoint in August 1974; committing lewd acts and carnal indecency under violent conditions with a female telephone installer in December 1974; raping and tying up a mother of two children in her home in January 1975; sexually assaulting in October 1980 a woman that he had lured into his home while he was on parole; escaping in June 1981 from the Adult Diagnostic and Treatment Center (ADTC); and sexually assaulting the wife of an ADTC employee while he was a fugitive during that escape. As to the latter, E.C. pled guilty to burglary and aggravated criminal sexual contact and was sentenced to serve ten years in state prison. While incarcerated for these offenses, in 1984, E.C. induced a fifteen-year old minor, via letters sent from prison, to send him nude photographs of herself in exchange for $400.00 and his assistance with her "modeling career." E.C. pled guilty to the offense and was sentenced to an eighteen-month term to run consecutive to the ten-year sentence he was serving for escape, burglary, and aggravated criminal sexual contact.
E.C. was initially committed in 1998, before expiration of his prison term for endangering the welfare of the fifteen-year old minor. Since his initial commitment, E.C. has been subject to multiple review hearings, in which the court found he satisfied the requirements for continued commitment.*fn1
The present appeal arises out of E.C.'s most recent review hearing which occurred on September 30, 2009, at the close of which the trial judge continued his involuntary civil commitment. At the hearing, E.C. presented no testimony on his behalf. The State, on the other hand, presented the testimony of Dr. Pogos Voskanian, a psychiatrist, and Dr. Nicole Paolillo, a psychologist and member of the Treatment Progress Review Committee (TPRC). Since E.C. refused to interview with Dr. Voskanian, the psychiatrist formulated his own diagnosis, discussed at length in a forensic psychiatric evaluation report dated September 15, 2009, after reviewing E.C.'s "file, discovery file, treatment records, progress notes, prior reports, which tell[s] the story pretty well, and provided  the list of symptoms, behaviors, [and] personality characteristics" as well as E.C.'s progress in treatment.
According to Dr. Voskanian, E.C. had two "MAP [Modified Activities Program] placements" in the past year, in May and August, "[o]ne was [for] the threat to set the facility on fire if he's transferred from one facility or another, or to choke someone" and the May MAP placement was for "possession of bootleg CDs,  DVDs, and duct tape" in violation of institutional rules.*fn2 In discussing the relevance of E.C.'s August threat to burn down the facility and choke someone, Dr. Voskanian stated:
[E.C.'s] sexual offenses are closely correlated with violent behaviors, anger.
And as his anger persists, he is going to sexualize it, and that issue has been addressed in treatment team that he tends to express his anger in a sexual way. He is heterosexual, of course, he did manage to get at a wife of employee here from . . .
Avenel. He continues disregard for others, in terms of being intimidating, not being able to control his anger, and having great deal of stuffed in anger places him at very high risk, I believe, to - to sexualize it as was - as is his history.
Dr. Voskanian concluded E.C. suffers from a mental abnormality, namely paraphilia not otherwise specified (NOS), antisocial personality disorder, and polysubstance dependence in institutional remission, all which predispose E.C. to sexually reoffend. Dr. Voskanian noted:
[E.C.] has extensive history of substance abuse and he did attend AA and NA meetings. However, I believe he did have problems, if you let me - with the degree of anger that [E.C.] is experiencing, he remains at high risk to reoffend as well, that contributed to his higher risk of sexual recidivism, because people who truly obtain or get to the point of accepting their flaws and addressing them in substance abuse treatment, they also address their personality characteristics that predispose them to substance- the use of substances to deal with their issues.
And it does not appear that even though [E.C.] did take some modules or attended AA and NA groups that he was able to deal with his anger, with his aggression, and he continues to violate the rules and present himself in quite a violent and a verbally threatening and aggressive manner.
And he has disregard for the community, has disregard for other people. He disregards other's rights. He violates other's rights. He can, again, elicit trust. He's quite skilled, and then violate the trust, so he's - he does not adhere to social norms.
In discussing his reasoning for diagnosing E.C. with paraphilia, Dr. Voskanian stated the diagnosis was appropriate because of his history "of several repetitive rapes and attempts to rape, and so paraphilia NOS, which I applied to [E.C.'s] tendency to rape or attempt to rape . . . which stems from his, again, inability to contain his anger or express his anger in more socially acceptable ways, but through sexual aggression."
Importantly, Dr. Voskanian noted that when the two conditions, antisocial personality disorder and paraphilia, are combined it "magnifies" the risk to sexually reoffend. With the addition of substance dependence to the combination, it "takes any control from the individual to contain his aggressive and sexually aggressive impulses." Dr. Voskanian further noted that E.C. "did not benefit from treatment up to this point" as he did not integrate the benefits of what has been offered to him at STU." He stated that given his diagnosis, E.C. is still predisposed to sexual violence and presents a "high risk" to reoffend in the foreseeable future, since:
Well, there is a history of substance dependence. Substance dependence, by itself, would impair cognition, impair impulse control; that is, impact on volition, and also affect the emotional component. Paraphilia, the expression of anger through sexual aggression, that is also a compulsive way of doing things, which also contributes to all these components. And he does not have enough insight or enough emotional control to be able to - to control the volitional component, and he does not have enough insight to say that his cognitive component is improved.
Now with personality disorder, that affects it all and makes it more likely to take place, that it's much more likely to take place. All of - all cognition, emotion, and volition becomes more severely affected. Like Dr. Voskanian. Dr. Paolillo diagnosed E.C. with paraphilia not otherwise specified (NOS), polysubstance dependence and severe antisocial personality disorder. According to Dr. Paolillo, E.C. "has responded extremely slowly to treatment" and the committee has seen "very small changes in his presentation." She further noted that "[i]f anything, over the years, he becomes more savvy in treatment and more knowledgeable about how to present well in treatment, yet meanwhile maintaining the minimal level of internalization of concepts."
Dr. Paolillo authored the report reflecting the committee members' collective opinion after the TPRC review of E.C. One of the committee's obligations is to assign a phase of treatment for STU residents and, with regards to the treatment of E.C., they unanimously voted for him to "remain in Phase III of treatment," which is considered the core phase. Dr. Paolillo noted:
There is a significant amount to do for [E.C.] to advance to Phase IV. On paper, [E.C.] has completed an impressive amount of modules. He's been here since '99, he's Number 14, so he's had a lot of time and clearly he's been productive at times, and he's been successful. What this reflects is an intellectual ability to comprehend information and be able to reiterate it in a meaningful way. [E.C.] clearly is intellectually capable of doing so, as reflected by these completed modules. He also is capable of presenting in a very positive light and that he's willing to go to modules, and be very supportive of his peers, which is expected, to be able to write written work, which is expected, and to be able to kind of integrate information in a way that shows that he's meaningfully engaged in the therapeutic process.
Those behaviors are reflective of only a few of the criteria of being meaningfully engaged. Another indication of an individual who is meaningfully engaged is someone who's able to reflect on their own dynamics, and also those of others, which he's clearly capable of doing. But the next step of that behavior would then be to integrate the information and start applying it to your own life. This is where [E.C.] falls short.
We see that he can comprehend information. We see he can spit it back out verbally. We see he can apply it to others. We do not see him applying it to himself. That then reflects to us that the presentation that he is - he's basically providing is superficial. It's not based on a genuine internalization of the material. And I think what keeps him from internalizing the behavior - the material into a behavioral expression is his severe antisocial personality.
He's very capable of presenting well, impressing others, manipulating others, yet meanwhile trying to kind of meet his own needs over those of others. I don't feel as though in a genuine way he's reflecting that he's meaningfully engaged in treatment. And currently, based on the past couple of years, and most importantly this year, his behavior is starting to look a lot more reflective of an introductory phase, such as Phase II.
E.C. refused to meet with the committee for his review. Dr. Paolillo stated E.C.'s refusal was "extremely consistent with his personality . . . he's a very manipulative, deceptive individual who attempts to obtain the things that he wants in the ways that he wants to get them, even if they typically are beyond what's regulated, what's normal, what's considered acceptable procedure."
Dr. Paolillo testified that "[b]asically over the past year, [E.C.] has been on MAP for the majority of the year." In discussing E.C.'s MAP placement, Dr. Paolillo noted:
His psychopathic tendencies appear to be escalating in that this year he was informed that he was likely to be moved to a dorm setting at the annex. He's never resided in a dorm setting prior to this, not at the STU, and he was extremely perturbed by such information.
His response to being informed that he was potentially going to be moved was that, you know, he - he refused to move. He stated . . . something to the effect of firebombing the facility, something to the effect of I will have the place burned down. He also threatened to physically harm another resident if he were moved. So he became very outraged, very angry and kind of out of control verbally. Not physically, but verbally, to hopefully get what he wanted, to not be moved to a dorm setting.
Dr. Paolillo further testified that:
I would only assume in the community, without being in a facility like this, and major consequences, he may even act upon his threats. But this is all speculation, because clearly he's not out, and we don't know, but it does seem as though, based on his history, that he has a potential for being very dangerous without supervision or someone to monitor him very closely.
Additionally, E.C. scored a thirty on the Psychopathy Checklist-Revised (PCL-R) which reflects, according to Dr. Paolillo, that he "meets the diagnostic threshold for psychopathy which [is] consistent with his history and behavior" and "reflects a very manipulative, deceptive personality structure that's based on both behaviors and more psychological features." Dr. Paolillo testified that E.C. scored a seven on a "Static-99 test[,]" an actuarial measure of risk for sexual offense recidivism, which placed him "in the high risk category, which compared to offenders within that group, fall into a very high percentile of risk to reoffend."
E.C. presented no witnesses and his representation simply argued that "I don't think that the MAP placements counteract the long years of positive reports that he's been getting from TPRC, groups, and his treatment providers regarding his treatment, and the many, many modules that he has accomplished" and that the State has failed to carry its "heavy burden" in this case.
At the close of evidence, Judge McLaughlin concluded that E.C.'s commitment should continue, and set the next review hearing for September 15, 2010. The judge reasoned:
I find that the State has proven by clear and convincing evidence, based upon the unrefuted testimony of the doctors who appeared, Dr. Voskanian and Dr. Paolillo, and from the evidence that [E.C.] has been convicted of sexually violent offenses, that he suffers from an abnormality, personality disorder; namely, paraphilia, antisocial personality disorder, polysubstance abuse, and that these disorders presently cause him to have a serious difficulty controlling his sexual violent behavior, which is borne out by the anger that he has exhibited towards staff members, and his threats to choke . . . another inmate, or to burn down the facility as recently as May of 2009.
And that . . . [it] is highly likely that he will reoffend in the reasonably foreseeable future if not committed to STU. This is based upon the unrefuted testimony of Dr. Paolillo and Dr. Voskanian who evaluated and rendered psychiatric and psychological opinion to that effect.
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 matter of 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 McLaughlin in his oral opinion of September 30, 2009.