June 2, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF D.C.R. SVP-274-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-274-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 24, 2010
Before Judges Lisa and Coburn.
Appellant, D.C.R., now forty-six years of age, appeals from Judge McLaughlin's November 18, 2009 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend if not confined to the STU.*fn1 We disagree and affirm.
The first sexual offense for which appellant was convicted occurred on October 4, 1997. S.G. fell asleep in her friend's car in the parking lot of a restaurant. She woke up when she felt appellant, whom she had just met, molesting her. After the police were notified, a warrant was issued for appellant's arrest. He was arrested on February 4, 1998 in Houston, Texas and extradited to New Jersey on February 18, 1998. On April 28, 1998, appellant pled guilty to first-degree aggravated sexual assault. He was sentenced on July 31, 1998 in the second-degree range to five years in prison with a parole disqualifier of four years and three months. The sentence was amended on May 17, 1999 to add a five-year period of supervision upon release.
On November 29, 2000, A.A. informed the police that appellant had sexually assaulted her in 1996 when she was thirteen years old. Appellant was subsequently charged with sexual assault, to which he pled guilty on May 24, 2001. On October 12, 2001, he was sentenced to three years imprisonment with a one-year parole disqualifier, to run concurrently with the sentence he was already serving for aggravated sexual assault. He was also sentenced to Community Supervision for Life and no contact with the victim.
Appellant's convictions constituted sexually violent offenses as defined in N.J.S.A. 30:4-77.26. The State filed a petition seeking appellant's civil commitment pursuant to the SVPA. On October 10, 2002, the court found probable cause to believe that appellant was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. A final hearing was held on January 17 and 23, 2003. The court found that the State's evidence established that appellant was a sexually violent predator and ordered that he be remanded to the STU. Appellant appealed and we affirmed on February 6, 2006. No. A-3270-02T2.
A review hearing was held on July 14, 2006. On July 19, 2006, the court determined that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant appealed and we affirmed on April 9, 2007. No. A-6354-05T2. Another review hearing was held on July 11, 2007. The court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant appealed and we affirmed on May 21, 2008. No. A-1849-07T2. Additional review hearings were held on August 14, 2008 and November 18, 2009. The court found separately on both occasions that appellant continued to be a sexually violent predator and ordered his continued commitment. Appellant now appeals from the November 18, 2009 decision.
At the November 18, 2009 hearing, the State presented the testimony of Dr. Pogos Voskanian, a psychiatrist. He testified that appellant did not participate in an interview scheduled for October 28, 2009, but that appellant had participated in an interview with him in July 2009. Dr. Voskanian testified that he was able to render an opinion to a reasonable degree of psychiatric certainty based upon past interviews and a review of defendant's case history. Dr. Voskanian diagnosed appellant with paraphilia NOS, pedophilia, alcohol dependency in institutional remission, and personality disorder NOS with antisocial traits. He opined that these conditions in combination predispose appellant to commit acts of sexual violence, cause him to have a serious difficulty controlling his sexual offending behavior, and, considering his poor progress in treatment, put him at a high risk of reoffending. Dr. Voskanian's report of November 2, 2009 was admitted into evidence, and it was consistent with his testimony. Appellant did not produce any witnesses on his behalf at the November 18, 2009 hearing.
Judge McLaughlin's November 18, 2009 oral opinion thoroughly reviewed the documentary and testimonial evidence, and he concluded:
I find by the unrefuted evidence the [S]tate has proven, by clear and convincing evidence, that [appellant] suffers from an abnormality, a personality disorder, namely his paraphilia, his pedophilia, and his personality disorder with anti-social traits.
That this personality disorder disposes him to have serious difficulty to control his harmfully, sexually violent behavior. And that he presently isn't able to control his harmfully, sexually violent behavior, such that it is highly likely that he will reoffend in the reasonably foreseeable future if not committed to a secure facility for control, care, and treatment.
The testimony is unrefuted that he has made very little progress in treatment while at the STU. That his anti-social personality traits, substance abuse, his sexual pathology are all factors that contribute to his high risk to reoffend.
Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.
As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128.
At the commitment hearing, the State must prove a 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
The scope of appellate review of judgments of civil commitment is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. 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)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the... expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
We are satisfied from our review of the record that Judge McLaughlin's finding that appellant continues to be highly likely to reoffend and otherwise meets all criteria for continued SVPA commitment is well supported by the record, and we defer to that finding. We affirm substantially for the reasons stated by Judge McLaughlin in his thorough and well reasoned oral opinion of November 18, 2009.