July 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF A.R., SVP-192-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-192-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 14, 2011
Before Judges Carchman and Parrillo.
A.R., a 47-year-old male, appeals from an October 27, 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 A.R.'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).
A.R. has been convicted of three predicate sexual offenses. The first offense took place on October 15, 1982, when N.I., an adult female and a stranger to A.R., was walking home after parking her car, saw A.R. step out from behind some bushes with his pants pulled down to his ankles and expose his genitals to N.I. A.R. then reached out and grabbed N.I.'s buttocks and said, "Give me your pussy!" The victim proceeded to scream and A.R. pulled up his pants and ran. N.I. ran home, called the police, and A.R. was apprehended shortly thereafter. Pursuant to a plea agreement, A.R. pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) and was sentenced to one year of probation conditioned on serving thirty days in the Cumberland County Jail.*fn1
The second offense occurred on March 16, 1983, when A.R. sexually assaulted D.F., an adult female limited in her cognitive capacities. A.R. and two accomplices approached D.F., forced her into an isolated barn, removed her clothing and proceeded to engage in vaginal and anal intercourse with the victim. As a result, A.R. was arrested on April 20, 1983 and charged with aggravated sexual assault, sexual assault, and terroristic threats. A.R. claimed then and still claims that D.F. never said "no," screamed or cried, and that A.R. thought that the sexual intercourse was consensual. To the contrary, D.F. stated that she was screaming because of the pain she was experiencing from the anal intercourse. Pursuant to another plea agreement, A.R. was sentenced to an indeterminate term not to exceed seven years.
The third and final offense was discovered on July 19, 1985, when the Division of Youth and Family Services (DYFS) contacted police regarding a possible aggravated sexual assault involving a seven-year-old female. According to DYFS, the victim, D.R., had contracted gonorrhea after being sexually assaulted by A.R., her uncle. D.R. informed police that A.R. had "put his dick in my pussy." On December 4, 1986, A.R. pled guilty to two counts of sexual assault, one count of aggravated sexual assault, and two counts of endangering the welfare of a child. As a result of these convictions, A.R. was sentenced to an aggregate sentence of twelve-year imprisonment concurrent to the sentence he was then serving.
On August 8, 2001, the State filed a petition to declare A.R. as a sexually violent predator, N.J.S.A. 30:4-27.28. Subsequently, A.R. was temporarily committed to the Special Treatment Unit (STU) in Kearny, New Jersey. An initial commitment hearing was held on January 4, 2002, and A.R. was committed to the STU for a period of one year. Subsequent reviews were held, and A.R.'s commitment was continued in each of those reviews.
The present review was conducted on October 19, 2010. During the civil commitment hearing, Judge Philip M. Freedman considered expert testimony from psychiatrist Marta Scott, M.D., and psychologist Rosemarie V. Stewart, Ph. D. First, Scott reviewed A.R.'s psychiatric, sexual and medical history along with his substance abuse problems. Scott's report detailed two suicide attempts and a history of substance abuse problems with heroin, cocaine, marijuana and alcohol. In addition, Scott noted that initially A.R. was making some progress because he was "described to be less defensive in groups, [and] more participatory." However, his participation "significantly declined" thereafter.
Based on her evaluation, Scott diagnosed A.R. with paraphilia (non-consent type), polysubstance dependence, personality disorder with antisocial features and other conditions. Scott concluded, with a reasonable degree of medical certainty, that A.R. "continues to suffer from a mental abnormality that affects his cognitive, emotional and volitional capacity in a manner that results in serious difficulty in controlling his sexually dangerous behavior . . . [and] continues to be at high risk to sexually reoffend."
Dr. Stewart's opinion was consistent with that of Scott's, and she recommended that A.R. remain in treatment. More specifically, Stewart recommended that A.R. continue in Phase II of his treatment. According to Stewart, Phase II is a "stage where somebody is engaged in treatment to the extent that they attend process group[s] on a more or less regular basis." However, in this stage they are not fully engaged because they are not working on the core issues consistently, actively and without relapse. Further, Stewart reasoned that A.R.'s poor attendance to process group meetings reflected on A.R.'s incomplete treatment. In addition, Stewart's report suggested that A.R. should "continue to discuss his sexual offenses and the thoughts, feelings and events that led up to them" which will allow him to work on developing appropriate relapse prevention techniques.
On October 27, 2010, Judge Freedman concluded that based on the clear and convincing evidence of the testimony of the State's expert, A.R. continued to meet the criteria for civil commitment under N.J.S.A. 30:4-27.24 and ordered A.R. to be committed to the STU with a review to be held in one year on October 13, 2011.
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.
We make one additional observation. A.R. now asserts that he has a language problem that inhibits his treatment. The State counters by noting that A.R. is in a bilingual environment that provides necessary language resources. We conclude that this argument is without merit.