On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-283-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2010 -- Decided Before Judges Lisa and Reisner.
D.G.Y. appeals from an April 16, 2010 judgment continuing his 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.
The Law Division civilly committed D.G.Y. following his seven-year prison sentence for second-degree sexual assault. It was his third conviction for a sexually related offense. D.G.Y. pled guilty on April 2, 1996, to one count of second-degree sexual assault of a four-year-old girl, who was D.G.Y.'s grandniece. He molested the child on several occasions in April 1994 while the victim stayed with her grandmother. On one occasion, D.G.Y. removed his clothing in front of the victim. On another occasion, D.G.Y. removed the victim's clothing and made genital-to-genital contact with the victim. D.G.Y. subsequently admitted to police that he rubbed his penis on the victim's vagina.
D.G.Y. had a history of prior sexual offenses against children. In 1967, when he was fourteen years old, D.G.Y. was convicted and sentenced to probation for carnal abuse after he digitally penetrated his seven-week-old female cousin. In 1972, when he was eighteen years old, D.G.Y. again digitally penetrated a child, who was five years old. D.G.Y. pled guilty to debauching the morals of a minor on February 20, 1973, and was committed to the Adult Diagnostic Unit for an indeterminate term on August 31, 1973. D.G.Y. received parole on June 16, 1976. In addition to his sexual offenses, D.G.Y. has been charged a total of twenty-two times for non-sexual offenses and thirteen times for institutional charges while he was incarcerated.
The following evidence was presented at the April 16, 2010 hearing. The Treatment Progress Review Committee (TPRC), submitted an annual review report on February 26, 2010. A committee of two clinical psychologists recommended that D.G.Y. continue Phase Two of his treatment. The committee based its opinion on its interviews of D.G.Y. and his treatment team, progress reports and "all available information included in [D.G.Y.'s] STU file."
Dr. Shawn McCall, one of the two clinical psychologists on the committee, authored the report. The report indicated that D.G.Y. has "been marginally engaged in treatment for at least the last four years," but has experienced "some small improvement since being placed in a group for individuals with Developmental Disabilities . . . about three years ago." The committee added that "[D.G.Y.] appears to be developing some comfort and rapport with [his] treatment providers as evidenced by his finally coming to admit deviant sexual arousal to children." The committee recommended that D.G.Y. continue his current phase of treatment, but cautioned that placement in a lower phase should be considered if D.G.Y. "demonstrate[s] poor attendance to groups, disengagement in the treatment process, and aggressive behaviors during any treatment periods."
Consistent with the committee's evaluation, Dr. McCall testified that D.G.Y. should continue Phase Two treatment, which Dr. McCall described as "a rapport building phase wherein a person starts to acclimate themself [sic] to the treatment process" in preparation of "the major work of therapy in Phase Three." Dr. McCall recommended that D.G.Y. continue Phase Two treatment because "[D.G.Y.] continues to have difficulties controlling his impulses." Dr. McCall testified that D.G.Y. was placed in the Modified Activities Program (MAP) because he assaulted another resident in August 2008 and, in November 2008, assaulted a corrections officer and threatened a sergeant. D.G.Y. was allowed to return to his process group in March 2009, but was placed in temporary close custody in June 2009 after he threatened another resident. He returned to MAP and his process group the next day, but he pushed a corrections officer twenty days later and was not allowed to return to his process group until September 2009. Thus, Dr. McCall concluded, since August 2008, "there wasn't a whole lot of progress made."
Dr. McCall also shared his impressions of D.G.Y. after interviewing him. He testified that, although D.G.Y. "was definitely able to identify things that he should do [to control his anger], he doesn't appear to be able to follow through with them when needed, which is the concern." Dr. McCall, however, added that D.G.Y. has made some progress recently. Dr. McCall testified that, "for the last couple of months . . . since [the] report was generated, [D.G.Y.] has done fairly well as far as presenting his autobiography in group." Furthermore, Dr. McCall testified that D.G.Y. "has come around . . . to admitting that he has a deviant sexual arousal to female children." Dr. McCall explained that D.G.Y. exhibited "some trepidation about it before," but "it seems . . . he had come around to being more firm in it, his admission that he [is] aroused to children." Thus, Dr. McCall asserted that "it seems like [D.G.Y.'s] really just now starting to come to admit that there is a problem that he needs to work on."
Dr. McCall opined that D.G.Y. suffered from a mental abnormality or personality disorder which predisposes him to commit acts of sexual violence. Specifically, Dr. McCall diagnosed D.G.Y. with "pedophilia and antisocial personality disorder."
In his hearing testimony, Dr. Pogos Voskanian, a psychiatrist, agreed with Dr. McCall's diagnosis of D.G.Y.*fn1 Dr. Voskanian testified that D.G.Y. demonstrated "a very ingrained and pedophilic pattern." Dr. Voskanian added that D.G.Y. exhibited a "deeper-seated orientation" toward pedophilia because he committed his first sexual offense when he was an adolescent. Furthermore, D.G.Y. committed repeat offenses more than twenty ...