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In the Matter of the Civil Commitment of L.W. Svp-29-99.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 6, 2011

IN THE MATTER OF THE CIVIL COMMITMENT OF L.W. SVP-29-99.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-29-99.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 14, 2011

Before Judges Carchman and Parrillo.

Appellant, L.W., appeals from the Law Division's May 13, 2010 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that the State presented insufficient evidence to support his continued commitment. We have thoroughly reviewed the record, and we find appellant's argument lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.

L.W. is a sixty-eight year old male who was originally committed to the STU on December 13, 1999 at the expiration of his prison sentence for his 1982 predicate offense convictions for kidnapping, possession of a weapon by a felon, aggravated assault, and aggravated sexual assault. On August 30, 1982, L.W. kidnapped the victim, D.E., from her vehicle at a car wash and forced her into his trunk. D.E. resisted and he bit off the tip of her finger during the struggle. L.W. drove to a relative's house and, using a gun, forced D.E. inside. He removed her clothing and put her on a bed, binding her hands and feet. He performed cunnilingus on D.E. before untying her feet and raping her vaginally and anally. While incarcerated for these crimes, L.W. was institutionally charged with masturbating in front of a female officer in April 1999.

L.W. has a juvenile record and a long adult history of sexually violent and other criminal offenses. Specifically, L.W. committed lewdness in 1965; carrying a prohibited weapon in 1972; breaking and entering and grand larceny in 1972; flight to avoid prosecution in 1974; armed robbery in 1974; and breaking and entering with intent to rape, assault with intent to rape, and lewdness in 1974.

At the time of his initial commitment in December 1999, L.W. was diagnosed with paraphilia NOS, polysubstance dependence in forced remission, impulse control disorder, and antisocial personality disorder. Since his initial commitment, L.W. has been subject to multiple review hearings, in which the court found he satisfied the requirements for continued commitment.

The present appeal arises out of L.W.'s most recent review hearings conducted on April 7 and 22, 2010, which resulted in the continuation of his involuntary civil commitment. At the hearings, the State presented the testimony of three experts, including Dr. Pogos Voskanian, a psychiatrist, and Dr. Rosemarie Vala-Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC). Dr. Voskanian reviewed L.W.'s record and found a history of over twenty years of sexually aggressive behaviors. He concluded that L.W.'s risk of reoffending is high because of his history of sexual aggression and resistance to treatment.

Dr. Voskanian diagnosed L.W. with paraphilia NOS, alcohol abuse, polysubstance dependence, and antisocial personality disorder. Dr. Voskanian based his diagnosis of paraphilia on L.W.'s physically and sexually violent past as well as his anger. Additionally, Dr. Voskanian found that antisocial personality disorder was exhibited by L.W.'s lack of remorse or empathy towards his victims.

According to Dr. Voskanian, sexual pathology was indicated because, despite punishment, L.W. could not refrain from sexually offending behavior, resorting to sex as a weapon. Moreover, in his interview with Dr. Voskanian, L.W. justified his behavior and, in particular, minimized the 1982 predicate offense, presenting his version in a less violent and sadistic manner. Based on his interview with L.W. and his review of documentation, Dr. Voskanian concluded that:

[L.W.] comes across as an individual who sexualizes his anger. If he's angry, and he gets a lot - frequently angry at females, he takes his anger out by sexually assaulting them. [H]e had preplanned to assault the victim in the predicate offense. . . . [I]f he's angry, [L.W] is likely to take his anger out in a sexual way and, as he explained to me in his own way of stating it, and use sex as a weapon. So that's what ultimately brings him satisfaction of his revenge and of his anger . . . . This trend from his adolescent years persisted from stranger women, to prostitutes, to getting involvement in this pimping business, and culminating with the rape in his predicate offense. And he's described as a quite controlling individual, as per his treatment providers until now.

And, despite L.W.'s increasing involvement and progress in treatment programs over the last two years, Dr. Voskanian determined that L.W. is still in need of further treatment, especially in addressing the violence he employed in his crimes.

Dr. Vala-Stewart expressed similar opinions. The expert diagnosed L.W. with "paraphilia[] NOS, non-consent [sic] and with antisocial personality disorder." Dr. Vala-Stewart explained the diagnosis of paraphilia NOS because of L.W.'s long history of coercing women into sexual activity and his lifestyle of raping the prostitutes who worked for him. Her diagnosis of antisocial personality disorder was based on L.W.'s disregard for others, lack of empathy, and disregard for the law and rules. According to Dr. Vala-Stewart, paraphilia, antisocial disorder, or both, could stimulate sex offending.

Like Dr. Voskanian, Dr. Vala-Stewart observed that in the past few years, L.W. has "stepped up" by participating regularly in his process group, no longer victim stancing, becoming less defensive and participating in modules. In fact, Dr. Vala-Stewart and the TPRC recommended that L.W. be advanced from phase two of treatment to phase three.*fn1 Advancement to phase three may be recommended when the individual begins to work on his own personal dynamics and integrate treatment concepts into his own life. Dr. Vala-Stewart opined that even though L.W. is currently at a lower risk of reoffending than when he first began his treatment, he nevertheless remains in need of more treatment.

At the close of evidence, Judge McLaughlin concluded that L.W.'s commitment and treatment at the STU should continue and set the next review hearing for April 11, 2011. The judge reasoned:

I find that the State has proven by clear and convincing evidence that [L.W.] has been convicted of a sexually violent offense, particularly for his 1990 - 1989 conviction of sexual assault [of] J.H., his 1983 conviction of sexual assault [of] D.E., that he suffers from abnormality personality, as testified to by both Dr. Voskanian and Dr. Stewart, and particularly paraphilia and antisocial personality disorder.

And . . . I am further convinced that, based upon the unrefuted testimony of Dr. Voskanian, that he has a serious difficulty controlling his harmful sexually violent behavior, such that it is highly likely that he will reoffend in the reasonably foreseeable future and that this is a present condition, as Dr. Voskanian testified.

This appeal follows.

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 offender's likelihood of 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 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 132-33; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge McLaughlin in his oral opinion of May 13, 2010.

Affirmed.


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