June 2, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF G.Z. SVP-224-02.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-224-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 24, 2010
Before Judges Lisa and Coburn.
Appellant G.Z., fifty-one years of age, appeals from Judge Freedman's December 7, 2009 order continuing his involuntary civil commitment in the New Jersey Special Treatment Unit (STU) as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. At oral argument, appellant's counsel argued that Judge Freedman's findings are not supported by the record. In particular, appellant argues that the State failed to prove by clear and convincing evidence that he was highly likely to reoffend, and he therefore no longer meets the criteria for commitment.*fn1 We disagree and affirm.
The petition for civil commitment described the following predicate offense: On September 18, 1983, appellant met seventeen-year-old C.S. for the first time at a bar in Gloucester City. He offered to drive her home, but instead drove her, in a stolen vehicle and against her will, to a wooded area where he raped her twice. At the time, appellant was on parole for a May 1982 conviction for burglary, robbery, and theft. On April 2, 1985, appellant pled guilty to second-degree aggravated sexual assault and received a ten-year prison sentence. He was paroled on May 3, 1988.
In addition to the predicate offense, appellant's criminal history includes a one year probation sentence for malicious damage to property and breaking and entering in February 1973; an indeterminate prison sentence for burglary, theft, robbery, and possession of weapons in May 1982; and various charges in November 1999 while he was incarcerated, including attempting and planning to escape.
On May 21, 1988, eighteen days after his parole for the predicate offense, appellant was arrested in Nevada in connection with two separate instances in which he attempted to lure three children, ages five, five, and nine, into his vehicle, and was in fact successful in one attempt but the child managed to escape. He was tried and found guilty by a Nevada jury of second-degree kidnapping and possession of a stolen vehicle, and was sentenced on November 9, 1988 to fifteen years in prison.
On February 24, 1999, appellant was returned to New Jersey to serve a sentence for violation of parole. Prior to his scheduled release from prison in January 2002, the State petitioned for civil commitment pursuant to the SVPA. He was temporarily civilly committed to the STU on January 10, 2002, and after an initial hearing, was committed on August 26, 2002. We affirmed that commitment by our opinion of May 18, 2004. A-2145-02T2.
Subsequent review hearings were held, and appellant was recommitted by orders dated August 9, 2004, August 29, 2005,*fn2 August 7, 2006,*fn3 and December 4, 2007. We affirmed the December 4, 2007 commitment by our opinion of June 17, 2008. A-2382-07T2.
The review hearing that is the subject of this appeal was conducted on November 12, 2009. Judge Freedman rendered an oral opinion on December 7, 2009, and issued his order the same day.
At the hearing, appellant's attorney indicated that appellant refused to attend the hearing and refused to meet with him. The State presented the testimony of Dr. Roger Harris, a psychiatrist, who testified that although appellant refused to be evaluated, he had sufficient information from other expert reports, treatment reports, and progress notes to render a medical opinion. Dr. Harris diagnosed appellant with the following: Paraphilia NOS, pedophilia, hebephilia, alcohol dependence, polysubstance abuse, and antisocial personality disorder. According to Dr. Harris, these disorders and appellant's "serious difficulty controlling his sexually offending behavior," combined with the fact that he attempted to lure three children into his car shortly after being paroled for the predicate offense, make it highly likely that he would reoffend if released from the STU. Dr. Harris' report was admitted into evidence and was consistent with his testimony.
The State also presented the report of Dr. Nicole Paolillo, a psychologist and author of the report of the Treatment Progress Review Committee (TPRC). Although Dr. Paolillo did not testify, appellant's attorney "consent[ed] to the admission of Dr. Paolillo's report as testimony she would have testified, had she been here." Dr. Paolillo's diagnoses of appellant were consistent with Dr. Harris's. She concluded that he is a high risk to reoffend and that he should remain committed to the STU. Appellant presented no witnesses on his behalf.
Judge Freedman's forty-five page oral opinion thoroughly reviewed the documentary and testimonial evidence. He found that appellant's participation in the STU treatment programs "waxes and wanes. It's been waning recently" and appellant continued to need commitment. The judge credited Dr. Harris's testimony and the report of Dr. Paolillo. He concluded as follows:
I find that it's clear from the record, without question, that he suffers from a mental abnormality, in the form of paraphilias and personality disorder to such an extent that he is clearly predisposed to engage in acts of sexual violence, and, clearly, is affected volitionally.
[H]is relapse prevention techniques are not developed sufficiently, according to the treatment and testimony... and [he] would be highly likely to engage in acts of sexual violence within the reasonably foreseeable future, if he were released at the present time.
[T]he propensity of what he intends to do is high, as his record shows, as the doctor pointed out, the quickness with which he reoffended after being released, his lack of... sufficient progress in treatment, and the nature of what he does, which is quite serious... there still remains a dangerous person who... needs to continue to engage in his treatment.
So, for those reasons, I will continue [appellant]'s commitment, and set a review date of one year.
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) (quoting 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 canvass 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 Freedman'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 Freedman in his thorough and well reasoned oral opinion of December 7, 2009.