June 14, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF E.S., SVP-190-01.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-190-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
Before Judges Lihotz and St. John.
Appellant E.S. appeals from a judgment entered on October 19, 2011, continuing his civil commitment to the Special Treatment Unit (STU), a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."
N.J.S.A. 30:4-27.32(a). Our Supreme Court has explained the standard for involuntary commitment under the SVPA as follows:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . [T]he State must prove that threat 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.
Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.
[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
Our review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (internal quotation marks and citation omitted). A reviewing court must be mindful that the legislative intent in adopting the SVPA was "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002), certif. denied, 196 N.J. 86 (2008).
The record reveals that E.S. has committed numerous offenses, some of which qualify as "sexually violent offenses."
N.J.S.A. 30:4-27.26. He is now sixty-eight years old, an invalid, and suffers from chronic obstructive pulmonary disease.
E.S.'s most recent criminal conviction occurred in 1995, arising from an incident where he forced a fifteen-year-old male to perform oral sex on him. E.S. pled guilty to one count of sexual assault, N.J.S.A. 2C:14-2c, two counts of criminal sexual contact, N.J.S.A. 2C:14-3b, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a.
The State first petitioned for and obtained E.S.'s civil commitment on August 1, 2001. Review hearings resulted in orders that have continued commitment. E.S. has appealed four of these orders, and we have since affirmed three by way of unpublished opinions. See In re Commitment of E.J.S., No. A-2147-02 (App. Div. Oct. 21, 2004); In re Civil Commitment of E.J.S., No. A-0696-06 (App. Div. Apr. 9, 2007); In re Civil Commitment of E.J.S., No. A-4257-08 (App. Div. Oct. 6, 2009). The fourth hearing was conducted on October 19, 2011, which resulted in the order continuing commitment before us. We affirm with only the following comments.
At the hearing, the State presented the testimony of Dr. Pogos H. Voskanian. He testified that E.S. refused to discuss anything relevant during his latest psychiatric evaluation, adding that E.S. insisted he would "not . . . discuss anything sexual, anything personal, and his purpose of consenting to [an] interview practically was to complain about conditions at the STU, to complain about treatment," and to complain about the government, Homeland Security, and air traffic control. Dr. Voskanian also testified that E.S. is currently on "treatment refusal status" and displays symptoms of "pervasive anger, pervasive defiance, [and] pervasive oppositional stance." Dr. Voskanian's forensic psychiatric evaluation report, dated September 28, 2011, diagnosed E.S. with paraphilia and personality disorder. He also noted that E.S. has "provisional" pedophilia because, even though E.S.'s most recent victim was fifteen years old, his prior offenses included a 1970 conviction for impairing the morals of a minor, an eight-year-old boy, and possession of child pornography in 1985.
E.S. called Dr. Christopher Lorah, who testified about the results of the Abel Screen for Sexual Interest (Abel screen) he administered to E.S. Based on the results of the Abel screen, which measures the length of time a subject looks at various prurient images to determine whether a sexual attraction exists, Dr. Lorah concluded that E.S. does not have a sexual interest in pre-pubescent individuals and opined that he does not meet the criteria for pedophilia. However, Dr. Lorah conceded that while E.S. is certainly "at risk to commit another sexual offense," he disagreed that E.S. was at "such a highly likely level that he requires continued involuntary civil commitment."
After hearing the witnesses' testimony and arguments of counsel, Judge Pursel rendered an oral decision. In his decision, the judge found both experts to be credible; however, he found the testimony of "Dr. Voskanian . . . to be more convincing . . . than Dr. Lorah." The judge was also not persuaded by the results of the Abel screen administered by Dr. Lorah, finding that "I can't give it clearly much weight in this case."
Because our standard of review is narrow, we defer to the judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005).
The judge found by clear and convincing evidence, that the State proved E.S. "remains a sexually violent predator in need of continued confinement and treatment" and that his enduring reluctance to submit to treatment demonstrates that he is not of "such a mind" to be released.
After reviewing the record on appeal, we find no abuse of discretion in the judge's conclusion, or any error in his affording little weight to the seemingly favorable results of the Abel screen. Accordingly, we affirm substantially for the reasons set forth by Judge Pursel in his oral decision of October 19, 2011.
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