July 9, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF E.S. SVP-519-09
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-519-09.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2012
Before Judges Lihotz and St. John.
E.S. appeals from an initial commitment order entered on July 20, 2009, in which the court found he is a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and is subject to involuntary civil commitment. On appeal, E.S. argues that the State failed to establish by clear and convincing evidence that he has a mental abnormality and personality disorder sufficient to prove his present high likelihood to reoffend. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The record reveals that in 1984, E.S. was indicted on forty-one counts related to a spree of twenty-one rapes and home invasion robberies committed between 1979 and 1984, a time-period when, although his identity was unknown, the perpetrator was notoriously referred to as the "Edgemere Rapist" of Franklin Township. E.S. typically assaulted his victims between the hours of midnight and 6:00 a.m., while they were alone in their homes, many asleep in their beds. He used various weapons in the assaults such as sticks, bricks, tire irons, and knives. Several of the victims were gratuitously beaten before and after genital penetration had concluded.
E.S. pled guilty to six counts of aggravated sexual assault, two counts of attempted aggravated sexual assault, nine counts of aggravated assault, fifteen counts of assault with intent to commit burglary, three counts of burglary, two counts of theft, and two counts of attempted burglary. He was sentenced to a term of forty-years imprisonment. E.S. served approximately twenty-four years of his sentence; four of them were spent at the Special Treatment Unit (STU) of the Adult Diagnostic and Treatment Center at Avenel (ADTC). He was scheduled to max out of his sentence and be released on January 10, 2009.
On June 25, 2008, the State petitioned for E.S.'s civil commitment, and on July 14, 2009, a hearing was held. The State presented the testimony of two witnesses, Dr. Dean De Crisce, a psychiatrist, and Dr. Brian Friedman, a psychologist. E.S. called Dr. Timothy Foley, a psychologist.
Dr. De Crisce performed a psychiatric evaluation of E.S., and authored a report dated July 13, 2009. In his report, he noted E.S. suffers from paraphilia and antisocial personality disorder "as evidenced by repeated acts that are grounds for arrest, disregard for the welfare of others, [and] repeated lying." Dr. De Crisce acknowledged E.S. "has no doubt achieved significant treatment gains in the last four years," but concluded
Even after four years of treatment, [E.S.]
 does not present a forthcoming account as to the level of violence towards women in most of his sexual, and non-sexual assaults . . . [;]  is not forthcoming about peeping and fetishistic behaviors that he has variously reported to different evaluators . . . [;]  is not forthcoming about the strong likelihood of sexual motivation in his other non-sexual burglaries involving adult women, who were alone with him at the time of the crime . . . [;] [and 4] has not participated to a significant degree, in the 12 step program of recovery, which is the mainstay of community-based abstinence.
Based on these factors, Dr. De Crisce determined "there remains significant concern about [E.S.'s] ability to control the sexually violent behavior . . . to warrant additional treatment in a secure facility."
During the hearing, Dr. De Crisce testified that E.S. "needs more treatment, and . . . that this treatment cannot be done in an outpatient setting because this is a person who can present to his friends, family, neighbors . . . as if there was nothing going wrong and his ability to evade detection was quite impressive." He also noted that E.S. evaded such detection for four-and-a-half years, even while committing the crimes in a compulsive manner and always in the same community. Dr. De Crisce opined that E.S. has a history of drug and alcohol dependency, which exacerbated his condition, but his substance abuse was not the sole motivation of his crimes, as evidenced by his "trophy-taking" that consisted of keeping his victims' jewelry, licenses, and underwear. Dr. De Crisce further opined it was his determination that E.S. was "highly likely" to reoffend if he was not committed to the ADTC.
Dr. Friedman conducted a forensic evaluation of E.S. and authored a report of his findings dated June 15, 2009. In his report, he noted
E.S. has made some gains in treatment, and is viewed as being in the middle stage of sex offender treatment. However, there are a myriad of issues that I believe he needs to address more thoroughly before his risk is mitigated to a significant enough degree to contemplate community reintegration. Most notably, [E.S.] has made no gains in accepting responsibility for the violent nature of his crimes, nor has he demonstrated an understanding of why he was such a violent sexual offender.
Dr. Friedman concluded E.S. is a "classic compulsive and paraphilic rapist" and his "ability to offend over such a prolonged period of time without detection indicates that any supervision in the future would have to be intensive and unpredictable." Furthermore, he stated that if [E.S.] reoffends in the future, he is likely to commit the type of crimes that result in a relatively high degree of trauma to future victims. . . . [E.S.] represents the epitome of the paraphilic serial rapist, and I view him as one of the more dangerous individuals I have evaluated at the STU.
At the hearing, Dr. Friedman testified
These [were] violent rapes . . . it's not just that he doesn't admit to that, he doesn't understand why he did that, and while he may never know exactly why he did what he did, he needs to work on trying to understand all of that and understanding what he's capable of because the stakes are very high . . . and with four and half years of treatment for someone with this personality makeup, for this degree of sexual deviance, for this many years of reinforcing is in my opinion dramatically inadequate to address that kind of sexual pathology.
Dr. Friedman concluded, "I believe he is highly likely to commit future sexual crimes and that any crimes he committed would be relatively speaking extremely traumatic type of crimes to any future victims."
At the hearing, E.S. called Dr. Foley, who testified that after two interviews with E.S, he prepared two reports. His first report concluded that E.S.'s "penchant for aggressive and antisocial acts has waned over the years . . . [he] does not appear to pose a 'highly likely' threat for sexually violent behavior. He has the benefit of aging, years of sex offender treatment, and diminished criminal behavior since the 1990's."
Dr. Foley opined that E.S.'s age at the time of the interview, forty-six, decreased his risk of reoffending because "sexual offense recidivism decreases as a function of age and there's a precipitous decline particularly for rapists between the ages of twenty-five and forty-five." He concluded that E.S. was "less than highly likely" to reoffend if he was not confined to the STU.
After reviewing E.S.'s treatment records and the reports of the expert witnesses, the judge issued a comprehensive oral decision, in which he detailed his reasons for finding more credible the opinions offered by De Crisce and Friedman than that of Foley. The judge found that there was clear and convincing evidence that E.S. was highly likely to reoffend and engage in further acts of sexual violence if not confined to a secure facility for control, care, and treatment. Specifically, the judge determined E.S. has "had treatment, but he hasn't had the right treatment or the adequate treatment because he hasn't really owned up to his extremely violent and brutal sexual assaults." He also noted the expert testimony evinced that E.S. "will have and has presently serious difficulty controlling sexual harmful behavior."
Following his oral decision, the judge entered the order involuntarily committing E.S. to the STU.
E.S. raises the following argument for our consideration on appeal:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT E.S. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.
We begin our analysis by noting that the Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators."
In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute.
N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as: a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission 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.]
"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).
Involuntary commitment requires the State to prove by "clear and convincing evidence that the individual poses a threat to the health and safety of others," J.M.B., supra, 197 N.J. at 571 (internal citation and quotation marks omitted), because of a "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 the reasonably foreseeable future, W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, U.S. , 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33.
"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.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding that a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder" (citing W.Z., supra, 173 N.J. at 127)).
Appellate review of a civil commitment under the SVPA, is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have recognized that "'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), certif. denied, 192 N.J. 296 (2007). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630. A reviewing court must "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 470--71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). The State's expert testimony demonstrates E.S. suffers from paraphilia as well as a personality disorder. We afford the utmost deference to the judge's credibility findings with regard to the testimony of De Crisce and Friedman, especially in his accepting their opinions of E.S.'s refusal to be forthcoming about his level of violence towards women during the sexual assaults; his failure to accept responsibility for the violent nature of his crimes; and his compulsive and evasive condition that continues to pose a heightened risk of reoffending in the community without detection.
Although E.S. has demonstrated an ability to make strides in treatment since commitment at the ADTC, the record demonstrates his inability to accept responsibility and be forthcoming about the ultra-violent nature of his sexual assaults, which, when considered in light of his diagnosed mental condition, supports the judge's conclusion that he presents a high risk of reoffense if not committed to a secure facility for further treatment. Accordingly, we affirm the July 20, 2009 order, involuntarily committing E.S. to the STU.
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