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In the Matter of the Civil Commitment of


April 11, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-223-02.

Per curiam.



Argued March 19, 2012 --

Before Judges Parrillo and Alvarez.

R.M.W. appeals from an April 27, 2011 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

At age sixty-six, R.M.W. has amassed an extensive criminal history. Between 1965 and 1996, he was arrested approximately thirty-eight times, resulting in eighteen convictions, three of which were related to sexual conduct: a 1978 incident led a jury to convict him of lewdness and atrocious assault and battery; a 1988 incident led him to plead guilty to second-degree sexual assault by force or coercion; and a 1995 incident led him to plead guilty to criminal restraint of a woman whom he held while exposing himself. R.M.W.'s predicate offenses are detailed in this court's decision affirming his commitment pursuant to the SVPA. In re Civil Commitment of R.M.W., No. A-6243-01 (App. Div. Nov. 29, 2004) (slip op. at 2-7).

Since his initial commitment in 2002, R.M.W. has had multiple review hearings, each concluding that the State had satisfied the requirements for his continued commitment. We affirmed the judgments on the two occasions when R.M.W. appealed. In re Civil Commitment of R.M.W., No. A-2477-05 (App. Div. Dec. 4, 2006); In re Civil Commitment of R.M.W., No. A-4419-06 (App. Div. Nov. 15, 2007).

R.M.W.'s most recent review hearings, and the subject of this appeal, occurred on April 8 and 27, 2011. Dr. Pogos H. Voskanian, M.D., and Dr. Jamie Canataro, Pys.D., testified for the State and Dr. Christopher P. Lorah, Ph.D. testified on behalf of R.M.W.

Dr. Voskanian diagnosed R.M.W. with paraphilia NOS, alcohol dependence in controlled environment, polysubstance abuse in controlled environment, and antisocial personality disorder. During his interview with Voskanian, R.M.W. denied committing any sexual offenses and avoided discussion of his sexual history despite having "displayed excessive violence and aggression during his assaults." He appeared to "agree to be interviewed for the sake of formality since he was recommended to be interviewed by his attorney." Voskanian concluded that R.M.W. has "an abnormality and personality disorder that place him at high risk to engage in sexual violence if he is not confined in a secure facility for control, care and treatment[,]" and neither his age nor medical condition mitigate his high risk of sexually violent recidivism.

Moreover, R.M.W. has been refusing treatment at STU. He "remains on Treatment Refusal Status and was recently place[d] on MAP status secondary to aggressive behavior at the STU." According to Voskanian, R.M.W.'s "degree of progress is consistent with him being in Phase 2 of treatment in 2002 and Phase 1 in 2011. He refuses to discuss his offenses, "does not attend any substance abuse related modules and is not utilizing any self help groups despite his history of substance dependence. He remains [an] untreated sex offender with persisting high risk factors for sexual recidivism."

Canataro diagnosed R.M.W. with alcohol dependence, antisocial personality disorder, borderline intellectual functioning and R/O mild mental retardation. She confirmed that R.M.W. has been in Treatment Removal status since October 2007 and rarely participates in group therapy, as he has difficulty getting along with other residents. During this review period, R.M.W. was placed on MAP status for harassing someone outside the facility by telephone, and his privileges were suspended from November 15, 2010 until December 15, 2010.

Canataro recommended R.M.W. continue in Phase 1 of treatment with consistent attendance in his process group and recommended modules. Furthermore, Canataro recommended that since R.M.W.'s sexual offenses appear more driven by general antisociality than clearly diagnosable sexual pathology, the focus of future treatment should be on general criminogenic needs, concentrating on general aggressiveness, attitudes tolerant of sexual assault, impulse control, frustration tolerance, and emotional regulation. Canataro ultimately concluded that "[d]espite his age and medical conditions, [R.M.W.'s] behavior, resistance to treatment in this secure facility, and the many factors, as mentioned above, in his history related to sexual recidivism[,] strongly suggest that his risk has not yet been mitigated in any significant fashion."

Dr. Lorah, on the other hand, diagnosed R.M.W. with major depressive disorder, recurrent, mild, noncompliance with treatment, antisocial personality disorder in the provisional form, adult antisocial behavior, and borderline intellectual functioning. Lorah opined that "[t]here are no clear indications that [R.M.W.] has volitional deficits that appreciably compromise his current capacity to control sexually violent acts. None of the diagnoses assumes volitional deficits."

Lorah concluded that R.M.W. could be released from involuntary commitment and that "his current treatment needs can be adequately met in the community."

These needs include sex offense specific treatment in a less restrictive environment, appropriate housing, as well as repeatedly administered "maintenance" polygraph examinations focused on objective behaviors that could violate the terms of his release . . . . In terms of community supervision needs, [R.M.W.] should be subject to mandatory treatment participation, as well as meetings with supervising authorities and other stipulations commonly mandated for released sexual offenders. He should consider a structured care facility that is equipped to meet his copious medical needs.

At the close of evidence, Judge Mulvihill, crediting the State's experts over Dr. Lorah, concluded that R.M.W.'s commitment should continue and set the next review hearing for March 30, 2012. The judge reasoned:

And I find there is clear and convincing evidence, number one, that [R.M.W.] has been convicted of sexually-violent offenses. Clear and convincing evidence that he suffers from mental abnormality and personality disorders that predispose him to sexual violence, that affect him cognitively, emotionally, volitionally. These are ingrained. That they can only be mitigated by way of treatment. That [R.M.W.] has had no treatment and clearly keeps acting out . . . in an antisocial way and he presently is highly likely to . . . engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment.

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(b). "[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 Civil Commitment of J.H.M, 367 N.J. Super. 599, 610-611 (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 Civil 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 Civil 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 Mulvihill in his oral opinion of April 27, 2011.



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