On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-512-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 3, 2012 -
Before Judges Cuff and Fuentes.
L.W.P. appeals from an order of involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
L.W.P. pled guilty to rape and atrocious assault and battery on April 18, 1980; the victim was an adult female who was raped at knifepoint and stabbed in the left breast. L.W.P. was sentenced to an indeterminate term of ten to twenty years. He was released on parole on November 12, 1985.
On February 4, 1993, L.W.P. pled guilty to kidnapping, burglary and three counts of aggravated assault and sentenced to thirty years in prison with fifteen years of parole ineligibility. The victim was a former girlfriend. L.W.P. was serving this sentence when the State moved for civil commitment under the SVPA.
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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her 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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
On November 17, 2008, the State filed a petition for civil commitment under the SVPA. In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid. In this case, the predicate offense is the 1992 aggravated assault of a former girlfriend. L.W.P. also pled guilty in 1980 to rape and atrocious assault and battery. In the latter assault, L.W.P. stabbed the victim with a knife in a breast during the assault.*fn1
L.W.P. was temporarily committed to the STU pending a final hearing. This hearing occurred on May 15, 2009. At the hearing, the State presented the testimony of Pogos Voskanian, M.D., a psychiatrist, and Nicole Paolillo, Psy.D., a psychologist. L.W.P. presented the testimony of Timothy P. Foley, Ph.D., a psychologist.
In an April 27, 2009, report Dr. Voskanian diagnosed L.W.P. with paraphilia NOS*fn2 , rule out (r/o) sexual sadism; alcohol and cannabis abuse with r/o dependence; and personality disorder NOS with anti-social traits. Dr. Voskanian derived his diagnoses from L.W.P.'s file, which included judgments of convictions, pre-sentence reports, police reports, and various psychological evaluations of L.W.P. L.W.P. declined to be interviewed by Dr. Voskanian on two different occasions. The doctor testified the types of reports he utilized are the types experts commonly consider to render an opinion. The paraphilia diagnosis is supported by a history of sexual offenses, all of which led to criminal charges, paired with other non-sexual criminal offenses. The circumstances of the 1979 rape caused Dr. Voskanian to conclude that sexual sadism should be considered. The failure of L.W.P. to participate in the interview, however, precluded a definitive diagnosis.
Dr. Voskanian based his alcohol and cannabis abuse diagnoses from reports including statements by L.W.P. about his use of these substances from an early age. The personality disorder diagnosis is derived from L.W.P.'s lack of remorse, superficiality, and denial of commission of sexual offenses as manifested in the documents reviewed by the doctor.
Dr. Voskanian concluded L.W.P.'s denial of the sexual offenses, alcohol abuse, and lack of remorse, coupled with his criminal history, puts him at a heightened risk to commit another sexual offense, if he is not civilly committed. Dr. Voskanian explained the risk of re-offense as follows: "[L.W.P.]'s sexual offenses suggest an underlying pathology of sexual stimulation and arousal when the victim is in psychological distress and physical pain. [L.W.P.] has no history of treatment for sexual offenses. He remains at high risk to sexually reoffend." He also opined that L.W.P.'s age (then fifty-two, ...