On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-279-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2010 -- Decided Before Judges Lisa and Reisner.
N.M.W., now twenty-eight years of age, appeals from Judge Mulvihill's March 26, 2010 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. 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. He argues that he should be released from SVP commitment or granted conditional release due to his progress in treatment. Having carefully reviewed the record and considered the arguments of counsel, we affirm.
Appellant's predicate offense was a violent double rape that occurred on December 22, 1997. Appellant, then fifteen years old, approached a thirty-four-year-old woman and led her at gunpoint into a stairwell where he raped and beat her. Later, appellant approached a thirty-six-year-old woman and, at gunpoint, forced her behind a building where he robbed and raped her. Appellant pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and was sentenced to a five-year prison term with a fifty-one month parole disqualifier.
On October 11, 2002, prior to his scheduled release, the State filed a petition for appellant's commitment under the SVPA. After a hearing on November 19 and December 18, 2002, appellant was found eligible for SVPA commitment and a judgment was entered. We affirmed. In re Civil Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004), certif. denied, 182 N.J. 429 (2005).
A first review hearing was conducted on April 20, April 27, and May 3, 2006, and appellant's commitment was continued by order of May 17, 2006. We affirmed. In re Civil Commitment of N.W., No. A-4937-05 (App. Div. January 22 2007). After a second review, appellant's commitment was again continued by order of April 26, 2007. We affirmed. In re Civil Commitment of N.M.W., No. A-4610-06T2 (App. Div. November 15, 2007), certif. denied, 195 N.J. 418 (2008). After a third review, an order of on April 16, 2008 was entered continuing appellant's commitment, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4434-07 (App. Div. November 18, 2008). After a fourth review, an order of April 1, 2009 was entered continuing appellant's commitment, which we affirmed. In re Civil Commitment of N.M.W., No. A-4405-08 (App. Div. January 8, 2010).
The hearing from which appellant now appeals occurred on March 26, 2010. The State presented two witnesses, Dr. Rosemarie V. Stewart and Dr. Pogos H. Voskanian. Appellant presented no witnesses, and he did not present a proposed conditional discharge plan.
Dr. Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC), testified that she prepared a report for the Committee dated February 24, 2010 in which she outlined its finding that appellant should remain in Phase II of treatment in the STU. In preparing the report, Dr. Stewart reviewed numerous records and documents, interviewed appellant, and made her own, independent diagnoses. Factually, Dr. Stewart noted that appellant had been placed on Modified Activities Program (MAP) status for a large portion of the time that he had been in the STU. Accordingly, appellant had not regularly attended process groups or completed treatment modules. He scored an eight on the Static 99-R test, which indicates a high risk of reoffense.
She noted that appellant had shown some signs of progress. He was willing to engage in education and self-help groups, but was not necessarily eligible for them. He appeared committed to avoiding MAP status, and had taken less time to come off MAP when he had been placed there. He also reduced the frequency of his masturbation from seven times per day to twice per day, four times per week. However, he still denied the majority of his offenses, and had not completed any of the written requirements of his treatment.
Dr. Stewart diagnosed appellant as having paraphilia not otherwise specified (NOS), non-consent; exhibitionism; cannabis and alcohol abuse; and an anti-social personality disorder. In light of these diagnoses, and appellant's continued MAP placement, the TPRC recommended appellant's continued commitment in Phase II of treatment.
Dr. Voskanian, a psychiatrist, produced a report after twice interviewing appellant and consulting numerous records and reports related to appellant's history and treatment. He made his own diagnoses of appellant. He characterized appellant's behavior and personality during his second interview as volatile. Appellant ended the interview early when Dr. Voskanian pressed him related to appellant's exposure to and masturbation in front of female staff members. Appellant was very careful about what he would and would not discuss. He denied the facts of the predicate offense, and offered conflicting accounts of the violence involved in the crimes.
Generally, Dr. Voskanian's testimony was similar to Dr. Stewart's regarding appellant's treatment history, and the progress that he had made. He also recognized the same challenges as identified by Dr. Stewart: appellant's limited treatment participation due to his extended MAP status and his denial of his crimes. Dr. Voskanian diagnosed appellant with paraphilia NOS, exhibitionism, marijuana dependence, rule-out polysubstance dependence, and anti-social personality disorder. Ultimately, Dr. Voskanian ...