On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-417-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
C.L. appeals from an order entered on August 28, 2009, continuing his involuntary civil commitment to the 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.
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 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
C.L. was initially committed to the STU in 2001, while serving his sentence for a 2004 aggravated criminal sexual contact conviction at the Adult Diagnostic Treatment Center (ADTC). The victim was an acquaintance who was giving C.L. a ride in her vehicle when he inexplicably attacked her and, during the course of the attack, fondled her breasts for his sexual gratification. He was given a six-year sentence to the ADTC and was committed to the STU before completing the ADTC sentence. Prior to committing the predicate offense, as a juvenile, C.L. was charged with fondling a relative with whom he resided over a period of years. The charge was downgraded to a simple assault for which he was adjudicated delinquent and placed on probation for one year. It was while he was on probation for this offense that he committed the predicate offense.
On August 28, 2009, Judge John McLaughlin conducted a review hearing at which two witnesses, Dr. Pogos Voskanian, a psychiatrist, and Dr. Nicole Paolillo, a psychologist, testified on behalf of the State. Defendant did not testify or produce any witnesses.
Dr. Voskanian testified that C.L. refused to participate in an interview with him and that the opinion he reached was based upon the records he reviewed. He diagnosed C.L. as suffering from paraphilia nos (not otherwise specified), which he testified referred to C.L.'s "rape and rape fantasies, and actually attempting rape," finding that C.L. "clearly has a fetish to underwear, long-standing." He also diagnosed C.L. as suffering from "sexual sadism." He additionally diagnosed post-substance dependency, antisocial personality disorder, and substance abuse. The doctor opined that all of these diagnoses have a synergistic effect and explained that substance abuse impairs judgment and makes it difficult to control impulses, creating a mindset of not caring and not fearing and that such a person is "ready to go" and "[h]e plans[.]" He noted that C.L. "did state to several evaluators that it was his plan to strangle, rape, and dispose [of] the body." The doctor opined that C.L. continues to have a mental abnormality and personality disorder that places him at a high risk to engage in acts of sexual violence if he is not confined in a secure facility.
Under cross-examination, Dr. Voskanian acknowledged that although C.L. would not allow an interview in preparation for his report, the records revealed that he "takes the floor" in group sessions. However, the doctor expressed the opinion that "it's not addressing much." Additionally, he acknowledged that C.L. had completed Relapse Prevention 1 and 2, as well as drug and alcohol education but had not passed the Substance Abuse Stages of Change 1 and 2 or anger management.
Dr. Paolillo, a member of the Treatment Progress Review Committee (TPRC), testified that C.L. was currently in Phase 2, which she described as an introductory phase of treatment where, among other things, the residents learn how to take the floor and also learn about sex offender dynamics. She explained that residents in this phase of treatment are "still struggling with their experience of being civilly committed. And for . . . those reasons their frustrations sometimes can interfere with them being able to meaningfull[y] engage[.]" She testified that C.L. was interested in progressing to Phase 3, which is considered the core phase, but there was concern with his tendency to mock his peers, to be condescending and sarcastic towards them as well as, at times, towards staff. She gave an example of this type of conduct: "[H]e doesn't engage often. He'll cover his eyes with his hat in group. When he's asked about that he'll say, oh, I'm thinking about something else." She indicated that C.L. is intelligent and has potential but that his largest treatment "impediment is his -- his kind of entitlement and sarcastic demeanor" and that his ...