July 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF S.E.J., SVP-378-04.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-378-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 14, 2011
Before Judges Carchman and Parrillo.
S.E.J., a fifty-nine-year old male, appeals from a December 15, 2010 order of the Law Division, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The issue before us is limited. An involuntary civil commitment may 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(b).
[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 trial judge must address S.E.J.'s "present serious difficulty with control over dangerous sexual behavior," 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 re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
These are the facts adduced from the record. On October 16, 1985, S.E.J. entered the residence of twenty-two-year-old victim, C.E., and proceeded to rape her at gunpoint. S.E.J. performed cunnilingus on C.E., penetrated her vagina with his fingers, had vaginal intercourse with her and then forced her to perform fellatio on him until S.E.J. ejaculated in C.E.'s mouth. S.E.J. then forced C.E. to bathe and wash out her mouth. S.E.J. then took C.F. to the master bedroom and locked her up in the closet along with her mother and nephew.
After a jury trial, on April 2, 1987, S.E.J. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate term of twenty-five years in prison.
While incarcerated, S.E.J. was also convicted in August 1990 of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), based on an allegation that in June 1985, he exposed himself to fifty-one-year-old J.Z. He was sentenced to time already served. In addition to these offenses, S.E.J. has an extensive criminal history.
In October 2004, prior to S.E.J.'s release for the predicate offense, the State filed a petition for civil commitment pursuant to the SVPA, and S.E.J. was temporarily committed to the STU. After a final hearing in May 2005, subsequent reviews were held in April 2006, January 2008, December 2008 and December 2009, and his commitment was continued in each of those reviews.
A review hearing was conducted on November 29, 2010, before Judge Philip Freedman. During the hearing, the State presented the testimony of Howard E. Gilman, M.D., a psychiatrist. According to Gilman, S.E.J. has been a regular attendee in his treatment groups, has taken the floor on a number of occasions and has been working on his autobiography, personal maintenance contract and sexual history questionnaire. However, after reading transcripts of S.E.J.'s interviews, Gilman had some reservations as to the progress of S.E.J.'s treatment. Gilman testified that S.E.J. "has a fairly lengthy history of giving conflicting and contradictory accounts of . . . the crimes for which he was convicted . . . as well as some of his other sexual problems." Specifically, Gilman noted that these reports reflected that although S.E.J. was doing well with regards to talking about his convictions and sexual problems, the inconsistencies in his interviews made his progress in his treatment suspect.
Based on his evaluation, Gilman diagnosed S.E.J. with paraphilia, not otherwise specified (NOS), exhibitionism, rule-out of alcohol abuse or dependence and antisocial personality disorder. Gilman reasoned that the combined effect of these disorders is to impair S.E.J.'s emotional, volitional and cognitive capacities and as a result concluded, with reasonable medical certainty, that S.E.J. "continues to be an untreated sex offender . . . [and] continues to be at high risk to sexually reoffend and therefore appears to be eligible for civil commitment . . . ."
The State also presented Nicole Paolillo, Psy. D., a psychologist and author of the Treatment Progress Review Committee (T.P.R.C.) report. She diagnosed S.E.J. with paraphilia, NOS non-consent, exhibitionism, alcohol abuse and personality disorder NOS (with antisocial and psychopathic features). Paolillo recommended that S.E.J. remain in Phase 3 of his treatment. During Phase 3, according to Paolillo, residents should be "meaningfully engaged in their process group, which is reflected by taking the floor, attending consistently, providing feedback to their peers . . . [and] receiving confrontation that's provided to them by their peers . . . ."
In addition, Paolillo noted that S.E.J. is not ready for Phase 4 because the "inconsistencies with his account of his offending . . . are not being actively addressed." The T.P.R.C. also recommended that S.E.J. be very detailed in his examination of his sexual offending history in process groups and talk about his feelings towards women in any way that may influence his sexual offending.
In his oral opinion of December 15, 2010, Judge Freedman continued S.E.J.'s civil commitment. He found by clear and convincing evidence that S.E.J. "suffers from a mental abnormality of paraphilia and a personality disorder that individually and in combination predispose him to engage in acts of sexual violence." Judge Freeman concluded that S.E.J. was in need of further treatment and because there was no basis for a conditional discharge in this case ordered S.E.J. to be committed to the STU and set a review date of one year.
On appeal, S.E.J. asserts that Dr. Gilman improperly relied on uncharged offenses in reaching his conclusions. The State counters by noting that he referenced charged offenses that did not result in convictions. In addition, S.E.J. further claims that the judge did not give sufficient weight to S.E.J.'s treatment progress. We have carefully considered the record and conclude that S.E.J.'s arguments in both instances are without merit without the necessity of further comment. R. 2:11-3(e)(1)(E).
The scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We do not find such an abuse in this case as this record well supports continued commitment under the SVPA.
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