November 10, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF R.S.G. SVP-83-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-83-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011
Before Judges Carchman and Nugent.
Defendant, R.G., appeals from the Law Division's August 25, 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 no merit in defendant's argument. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.
Defendant, thirty-one years old, was convicted of three predicate sexual offenses. In June 1996, at the age of sixteen, he performed anal intercourse on T.T., a five-year-old male cousin, J.G., a seven-year-old female neighbor, and S.H., a four-year-old female cousin. Later that month, defendant was arrested and charged with three counts of Aggravated Sexual Assault. On January 29, 1997, pursuant to a plea agreement, defendant pled guilty to and was convicted on three counts of Aggravated Sexual Assault. N.J.S.A. 2C:14-2(a). As a result of the conviction, he was sentenced to probation and to complete treatment at the Pinelands Residential Group Center on March 7, 1997. While at the Pinelands facility, defendant reported having fantasies about killing his pregnant therapist. Consequently, he was sent to Hampton Hospital, Hampton Behavioral Health Center between April 23, and May 8, 1998.
On August 6, 1998, defendant was found to be in violation of probation for his failure to complete the treatment program as well as his failure to make payments towards a fine, and he was committed to the Juvenile Justice Commission, New Jersey Training School in Jamesburg for a term of four years. During his time at the Jamesburg facility, defendant reported ongoing sexual fantasies towards children and violent sexual fantasies.
On May 25, 2000, the State filed a petition for civil commitment under the SVPA. Subsequently, defendant was committed to the State of New Jersey Department of Human Services Special Offenders Unit. Subsequent reviews were held, and R.G.'s commitment was continued after each of those reviews.
The present review was conducted on August 9, 2010. During the hearing, Judge John A. McLaughlin considered expert testimony from psychiatrist Howard Eliot Gilman, M.D., and psychologist Nicole Paolillo, Psy.D. First, Gilman reviewed defendant's psychiatric, sexual and medical history. As noted in the report that formed the basis of Gilman's testimony, defendant had a history of sexual fantasies about male and female children and violent sexual fantasies, as well as sexual assault of young children. Defendant had recently claimed that he made up the fantasies to get attention, and Gilman characterized defendant's explanation as plausible. Defendant was a victim of sexual assault during his childhood and had a history of destructive, violent and insubordinate behavior. In addition, defendant had numerous suicide attempts and ideations.
The record showed that during the first few years of his commitment, defendant was on the Modified Activities Program for fighting, threatening and an attempted escape. He was involved in unit disruptions that included contraband, as well as attempts to assault other residents. In 2006 and 2007, defendant became more involved in treatment. In 2009, defendant was recommended for promotion from Phase II to Phase III of treatment. Over the past two review periods, defendant was noted to be significantly more engaged in treatment and to have demonstrated consistent attendance, active participation and adequate behavior control, although he was verbally inappropriate to his module facilitator. However, his reports of his offenses remained inconsistent, and he denied commission of the sex offense against his male victim to which he pled guilty.
Based on his evaluation, Gilman diagnosed defendant with antisocial personality disorder. He concluded, with a reasonable degree of psychiatric certainty, that because of defendant's history of sexual offenses against prepubescent children, possible underlying pedophilia, his antisocial personality disorder and his inability to meaningfully engage in treatment up to the present time, defendant posed a high risk to sexually reoffend in the foreseeable future, unless he were confined to a secure facility for treatment.
Dr. Paolillo's opinion was consistent with that of Gilman, and she recommended that defendant remain in treatment. She diagnosed defendant as suffering from the following psychiatric conditions: pedophilia (non-exclusive type, sexually attracted to females and males, not limited to incest); rule out sexual sadism; depressive disorder; post traumatic stress disorder; personality disorder with antisocial and borderline features. Paolillo recommended that defendant continue to rely on his process group and his peers and to stabilize his insufficient coping, and she also thought it would be beneficial for him to attend self-help groups. She stated that defendant had missed several sessions of his group, and he would have to improve his attendance in order to avoid a demotion and remain focused on improving himself in treatment. Paolillo also noted that defendant showed progress when he passed a polygraph examination about pedophilic arousal and suggested that he focus on any feelings of deviant arousal so he could generate a plan for his future.
Judge McLaughlin concluded that based on the State's experts' testimony, defendant continued to meet the criteria for civil commitment under N.J.S.A. 30:4-27.24 by clear and convincing evidence. He ordered defendant to be committed to the Special Treatment Unit with a review to be held on August 3, 2011.*fn1
An involuntary civil commitment may follow completion 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 judge must address the offender's "present serious difficulty with control over dangerous sexual behavior[,]" id. at 132-33, and the State must establish, by clear and convincing evidence, that it is highly likely that the committee will reoffend. See 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 commitment under the SVPA, our 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. In re Commitment of J.M.B., 197 N.J. 563, 597 (2009). We affirm substantially for the reasons stated by Judge McLaughlin in his oral opinion of August 24, 2010.