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In the Matter of the Civil Commitment of E.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 13, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF E.C., SVP-014-99.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-014-99.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 6, 2012

Before Judges Sapp-Peterson and St. John.

Appellant E.C. appeals from a judgment entered on January 10, 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. Following our review of the record on appeal, 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.C. has committed numerous offenses, which qualify as "sexually violent offenses."

N.J.S.A. 30:4-27.26. He is now fifty-nine years old and suffers from hepatitis B and C, an infectious sexually transmitted disease; hypertension; diabetes; and a combination of arthritis and osteoporosis.

E.C. has a longstanding pattern of sexually violent and other criminal offenses. Throughout the mid-1970s and early 1980s, E.C. was found guilty of raping an eighteen-year-old woman at knifepoint; committing lewd acts and carnal indecency under violent conditions with a female telephone installer; raping and tying up a mother of two children in her home after threatening to genitally penetrate her one-year-old daughter if she did not cooperate; sexually assaulting a woman that he had lured into his home while he was on parole; escaping from the Adult Diagnostic and Treatment Center (ADTC), and sexually assaulting the wife of an ADTC employee, while he was a fugitive. As to the last offense, E.C. pled guilty to burglary and aggravated criminal sexual contact and was sentenced to serve ten years in State prison. In 1984, while incarcerated for these offenses, E.C. induced the fifteen-year-old daughter of his former girlfriend, via letters sent from prison, to send him nude photographs of herself in exchange for $400 and his assistance with her "modeling career." E.C. pled guilty to that offense and was sentenced to an eighteen-month term to run consecutive to the ten-year sentence he was serving for escape, burglary, and aggravated criminal sexual contact.

The State first petitioned for and obtained E.C.'s civil commitment in 1998. Since his initial commitment, E.C. has been subject to multiple review hearings, after each hearing the trial court found he satisfied the requirements for continued commitment, and we affirmed each decision. See In re Commitment of E.C., No. A-0810-09 (App. Div. Feb. 11, 2010); In re Civil Commitment of E.X.C., No. A-0054-08 (App. Div. Nov. 19, 2008); In re Commitment of E.C., No. A-4705-03 (App. Div. Apr. 13, 2005); In re Civil Commitment of E.C., Nos. A-5785-99 & A-3111-00 (App. Div. Nov. 13, 2001), certif. granted and summarily remanded for a review hearing, 174 N.J. 187 (2002). The present appeal arises out of E.C.'s most recent review hearing, which occurred on December 14, 2011, and January 10, 2012, and at the conclusion of which the trial judge continued E.C.'s involuntary civil commitment.

On appeal, E.C. argues that the State failed to prove by clear and convincing evidence that he is "highly likely" to reoffend, that he continues to suffer from a mental or emotional condition which may cause him to reoffend, and that the elements necessary to commit him under the SVPA have been met. After reviewing the record, we affirm with the following comments.

At E.C.'s annual hearing, the State presented the testimony of Dr. Pogos H. Voskanian, a psychiatrist. Dr. Voskanian testified that he interviewed E.C. twice on July 27 and December 2, 2011, and that he was "impressed, in a sense, by his degree of callousness, lack of disregard, blame of others, nothing [] wrong with his own behaviors." Further, Dr. Voskanian elaborated that E.C., "in his mind, [] did not rape [his victims]. Most of them, those were consensual relationships, in his opinion, fully consensual or at least partially consensual, or with express sexual interest in him by the victim." He described E.C. as a "smooth psychopath" who can present himself "in the very best light" while trying to manipulate and coerce others, "mak[ing] him [an] even more dangerous predator than somebody who is [a] more straightforward sociopath and does express his aggression, [and] verbalize[] his aggression."

With regard to E.C.'s health problems, Dr. Voskanian opined that E.C.'s condition will not affect his risk to reoffend because he lacks insight, remorse, and empathy. Ultimately, Dr. Voskanian diagnosed E.C. with paraphilia not otherwise specified, post-substance dependence, and a "severe degree" of antisocial personality disorder, which translates into E.C. having a high risk of reoffense if not confined.

The State also called Dr. Debra Roquet, a psychologist, who examined E.C. on November 29, 2011. She testified that E.C. related in the interview that "he sees women as weak and as vulnerable, easy to target. And he said that . . . the sexual assaults helped him to release tension and he also mentioned wanting his victims to feel his pain." In acknowledging that E.C. was not yet ready for a conditional discharge from the STU, she stated:

The primary recommendations for [E.C.], number one, is to shift the balance so that he focuses more on himself, that his engagement in treatment is really that he maintains the same level of engagement, but that the quality shifts so that he is doing what he needs to do as far as taking floors and that he takes floors that are focused on the things that are recommended for him to focus on are the -- speaking just to give a summary of the recommendations are on the paraphiliac arousal, current relationship history and difficulty with females exploitative tendencies and so on. Continued work, of course, on the substance abuse and being able to identify antisocial behaviors and attitudes in the present, being honest, open, forthcoming and self-disclosing so that he can recognize these characteristics because they are not likely to have changed or have gone away. Every indication is that these characteristics persist and they are present.

Following the State's witnesses, E.C. testified on his own behalf. He stated that although as a "young kid" he made many "mistakes," his old age and poor health works as an impediment to engaging in criminality. E.C. noted that he currently has a girlfriend, who he met during his commitment at Greystone Park Psychiatric Hospital. E.C. also admitted that his girlfriend was formerly a head nurse at Greystone, and that he escaped from that facility soon after he was committed in 2000. He maintained that he would be able to live with his girlfriend if released from the STU.

When asked about his feelings towards the sexually motivated crimes he committed, E.C. testified, "I feel very embarrassed at what I was doing at that time in my life. I feel very regretful for what I put people through at that time in my life. And every time that I'm faced with it it's very embarrassing." He also stated, "All my hostility and everything that was going against me in life I took it out on [the victims] and they didn't deserve that, they didn't deserve that at all." E.C. claimed that he understands the gravity of his offenses and that through therapy he has learned not to "create any more victims and certainly never to use [his] penis as a weapon."

E.C. also called Dr. Daniel Greenfield, a psychiatrist, to testify on his behalf. Dr. Greenfield testified that E.C. was suffering from paraphilia not otherwise specified, in institutional remission, as well as polysubstance dependence, in institutional remission. However, Dr. Greenfield recommended that E.C., who is currently in Phase III of his treatment, be advanced to Phase IV, which would give him a "boost, hope, reinforcement, which is something that is desirable" because a discharge plan should be slated on the horizon for E.C. He stated that E.C. should be allowed furloughs because he has excelled in his treatment, making him "less than highly likely to commit and offense in the foreseeable future." However, when asked whether "discharge is possible today under any circumstances[,]" Dr. Greenfield answered unequivocally in the negative.

After hearing the witnesses' testimony and arguments of counsel, Judge Pursel rendered an oral decision. In his decision, the judge noted that he was "not particularly impressed with E.C.'s testimony" because E.C. systematically denied the details of the long history of violent sexual offenses against women[,] disagreeing in minute detail with the official versions of those occurrences[,] denying that he ever planned any of these offenses except for the one and feels . . . oppressed because the one issue that continually comes up in these reevaluations i[s] the sexual assault upon the wife of a former officer at one of his treatment facilities.

The judge ultimately concluded the following:

I don't think that there's any difference in [E.C.'s] ability to deal with himself in the outside world today then there was last year or the years before or in 2010 [] when he was admitted to this facility.

It is my opinion that he has been convicted of sexually violent offenses, which are clear from the evidence submitted here and at all prior court hearings, that he suffers from a mental abnormality or personality disorder. That without confinement for care or treatment he's highly likely to commit another sexual offense and he would engage in further acts of sexual violence if not confined to a secure facility for control care and treatment.

I make those findings by clear and convincing evidence.

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 E.C. poses a high risk of reoffense if not confined to the STU because he continues to suffer from his personality disorders and has not made sufficient strides 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 E.C. Accordingly, we affirm substantially for the reasons set forth by Judge Pursel in his oral decision of January 10, 2012.

Affirmed.

20120813

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