August 13, 2012
IN THE MATTER OF THE CIVIL COMMITMENT OF S.E.J., SVP-378-04.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-378-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2012
Before Judges Sapp-Peterson and St. John.
Appellant S.E.J. appeals from a judgment entered on February 8, 2012, 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 S.E.J. has committed numerous offenses, some of which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. He is now sixty years old.
S.E.J.'s most recent criminal conviction occurred in 1987, arising from an incident where he entered the residence of a twenty-two-year-old victim, C.E., and after robbing her, he vaginally and digitally raped her at gun point prior to ejaculating into her mouth and forcing her to then wash herself of his DNA.
S.E.J. proceeded to lock C.E. in the master bedroom, along with her mother and nephew, before he fled. Following a jury trial, S.E.J. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree burglary, N.J.S.A. 2C:18-2; three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate term of twenty-five years in prison.
While incarcerated, S.E.J. was also convicted in August 1990 of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), based on an allegation that in June 1985, he exposed himself to fifty-one-year-old J.Z. He was sentenced to time-served. In addition to these offenses, S.E.J. has an extensive criminal history, and was suspected of committing six other rapes during the time he was at large. S.E.J.'s criminal history also includes a series of cases involving exhibitionism, where he exposed his genitalia to unsuspecting victims.
The State first petitioned for and obtained S.E.J.'s civil commitment in 2004. Review hearings resulted in orders that have continued commitment. S.E.J. has appealed five of these orders, and we have since affirmed all by way of unpublished opinions. See In re Commitment of S.E.J., No. A-4994-04 (App. Div. Apr. 26, 2007); In re Civil Commitment of S.E.J., No. A-2510-07 (App. Div. June 20, 2008); In re Civil Commitment of S.E.J., No. A-2463-08 (App. Div. June 19, 2009); In re Civil Commitment of S.E.J., No. A- 2184-09 (App. Div. June 2, 2010); In re Civil Commitment of S.E.J., No. A-2296-10 (App. Div. July 6, 2011). The sixth hearing was conducted on February 8, 2012, which resulted in the order continuing commitment before us.
On appeal, S.E.J. argues that the State failed to prove by clear and convincing evidence that he met the criteria for civil commitment, and that the judge erred in determining he suffers from a mental abnormality predisposing him to commit acts of sexual violence if not confined to the STU. After reviewing the record, we affirm with only the following comments.
At S.E.J.'s annual hearing, the State presented the testimony of Dr. Pogos H. Voskanian, a psychiatrist. He testified that S.E.J. is currently in Phase Three of his treatment program at the STU. According to Dr. Voskanian, S.E.J. has failed to complete the written component of his treatment and that his attempts to do so are inadequate.
Dr. Voskanian opined that S.E.J. suffers from paraphilia not otherwise specified, a diagnosis rendered as a result of S.E.J.'s criminal activities comprised of robberies that appear to be sexually motivated in nature. He testified that
The amount of time that [S.E.J.] spent on sexual act during the robbery, the . . . full spectrum of behaviors that he goes through, cunnilingus, vaginal penetration, fellatio, taking bath, it suggests that the primary reason is not robbery, but whatever he is spending most of his time on.
Then there is a totally different aspect, another facet of pathology that he reported after visiting his mother and sister, he had this urge to expose himself.
Dr. Voskanian also noted that with regard to S.E.J.'s therapy, "[h]e has a lot to work on. Those risk factors have not been mitigating. In addition to that, there is a history of previously reported alcohol dependence, which is later denied."
When asked on direct examination whether S.E.J. had received enough treatment for learning to control his impulses, Dr. Voskanian testified that S.E.J. "has not benefited from treatment," and, even though he has regularly attended group therapy, "there's no actual measurable progress that can be qualified as risk mitigating." Dr. Voskanian's ultimate conclusion was that S.E.J. remains having a "high risk" of reoffense.
The State also called Dr. Nicole Paolillo, a psychologist, who testified that based on her interviews with S.E.J., she determined he is "likely a serial rapist, an individual who's committed more than one rape, because it would be unusual to have your first rape be the one such like C.E.'s . . . and then also to be accused and investigated for so many other very similar incidences." Dr. Paolillo further testified that while S.E.J. has been consistently attending group therapy and taking an active role in his treatment, she has noticed a decline in his progress over the past six months. Namely, she testified that he "becomes defensive when confronted by his treatment providers regarding his offenses," and that on some occasions, he has been "outright actually rude and disrespectful" to one particular female treatment provider, which has proved to be an impediment to his annual progress. She also noted that S.E.J. has been increasingly less forthcoming about his crimes in therapy sessions and "denies exposing himself, even though he's admitted to doing that in the past for a period of ten years."
After hearing the witnesses' testimony and arguments of counsel, Judge Pursel rendered an oral decision. In his decision, the judge found the State's witnesses credible, and concluded that S.E.J. is a repeat offender who must advance beyond Phase Three of his treatment and "review his deviant arousal as well as his entire sex offense history," which the judge noted was not an unreasonable requirement. He found that based on the uncontradicted evidence submitted by the experts, there existed clear and convincing evidence that S.E.J. continues to suffer from a mental abnormality or personality disorder, posing a high likelihood of reoffense and requiring continued confinement to the STU for control, care, and treatment.
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). Here, the judge found by clear and convincing evidence that the State proved S.E.J. posed a high risk of reoffense if not confined to the STU because he has not made adequate progress or improvement in his treatment since his previous annual review.
We find no abuse of discretion in the judge's conclusion, or any error in his affording the State's witnesses credibility in their examination of S.E.J. Accordingly, we affirm substantially for the reasons set forth by Judge Pursel in his oral decision of February 8, 2012.
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