On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-255-02.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
L.X.F. appeals from the February 1, 2011 judgment continuing his 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. He contends the trial court gave insufficient weight to the testimony of his expert and to his progress treatment notes. Based on that premise, defendant argues the trial court's finding that he was a sexually violent predator in need of continuing involuntary civil commitment was against the weight of the evidence. We conclude the trial court's determination was supported by substantial credible evidence in the record and therefore affirm.
The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32a. As the Supreme Court observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71, cert. denied, __ U.S. __, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators." A "sexually violent predator" includes a person convicted of a sexually violent offense who "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.
To involuntarily commit a sexually violent predator, the State must prove "the individual poses a 'threat to the health and safety of others'" because of his or her likelihood of engaging in sexually violent acts due to a "'serious difficulty in controlling his or her harmful behavior such that it is highly likely'" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (first alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
L.X.F. is a sixty-two-year-old male with a lengthy history of sexual and non-sexual offenses. Since 1968, he has been charged on six occasions with sexual offenses, two of which resulted in convictions for rape. L.X.F.'s predicate offense occurred when he attempted to rape a young woman by holding an object to her back, telling her it was a gun, pushing her into a secluded area, and ordering her to remove her clothes. L.X.F. then held a broken bottle to the victim's throat but fled without completing the act because her screams attracted bystanders. On December 16, 1996, L.X.F. was convicted of second-degree attempted aggravated sexual assault and thereafter sentenced to a prison term of ten years with four years of parole ineligibility.
On June 25, 2002, the State filed a Petition for Civil Commitment under the SVPA. L.X.F. was temporarily committed in July 2002 and finally committed on December 6, 2002. He has been continually committed since then.
The parties presented the following evidence at the review hearing that occurred on non-consecutive days between October 5, 2010 and February 1, 2011. In January 2010, L.X.F. met with the STU Treatment Progress Review Committee (TPRC). In its January 22, 2010 report the TPRC recommended that L.X.F. remain committed to continue with his treatment, a recommendation consistent with the determination of L.X.F.'s treatment team at the STU. Dr. Jamie Canataro, a psychologist and member of the TPRC, testified that L.X.F. was diagnosed with paraphilia not otherwise specified (NOS), polysubstance abuse, and personality disorder NOS, with antisocial features. While Dr. Canataro commended L.X.F. for the work he had accomplished in treatment, she opined that L.X.F. had not completed Phase Three, the "core phase of treatment," and that L.X.F.'s score on the Static-99R, a test designed to predict the likelihood of sexual recidivism, indicated L.X.F. had a moderate to high risk of relapse. Dr. Canataro recommended L.X.F. remain committed to pursue longer-term treatment goals including participation in the "therapeutic community," completion of the "arousal reconditioning" module of treatment which is "very important . . . to formulate individualized relapse prevention techniques," and completion of a sexual history questionnaire and polygraph.
Psychiatrist Alberto Goldwaser testified for the State and recommended that L.X.F. remain committed at the STU. Dr. Goldwaser evaluated L.X.F. in January and September 2010, and diagnosed him with paraphilia NOS, polysubstance abuse, institutional remission, and antisocial personality disorder. The doctor observed that L.X.F. was "not progressing well in treatment," and that "[L.X.F.] expressed to me on the two occasions that I examined him, that he considers his being [in the STU] basically a joke[.]" L.X.F. expressed to the doctor that he was only in the STU "because the State needs to fill beds, or room[s] here." Dr. Goldwaser concluded that L.X.F.'s demeanor and test results indicated a high risk of reoffending.
L.X.F. offered the testimony of Dr. Douglas Martinez, a clinical psychologist who evaluated L.X.F. on September 6, 2010 and October 1, 2010. During those evaluations, Dr. Martinez performed a series of tests, including the Minnesota Multiphasic Inventory 2, the Hare Psychopathy Interview, and the Milan Clinical Multiaxial Inventory 3. Dr. Martinez concluded that L.X.F.'s risk of offending was low, but acknowledged his assessment hinged upon L.X.F.'s ability to "stay totally away from . . . alcohol, or any substance." Dr. Martinez explained:
[H]is risk [of reoffending] is low, based on three factors. One, he has been addressing his primary motivating factor, his feeling inadequate . . . . [Two], he has worked through a lot of . . . the factors that were involved in the diagnosis of antisocial personality . . . . [Three], he just absolutely has to stay totally away from . . . alcohol, or any substance . . . . [G]iven the amount of work that he's done on substance abuse treatment, if he continues that . . . I would say that his risk is low.
After reviewing the evidence and testimony of the witnesses, Judge John McLaughlin made the following findings ...