July 8, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF R.S., SVP-482-07
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-482-07.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant R.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, on the brief).
David L. DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DaCosta, on the brief).
Before Judges Messano and Mantineo.
Appellant R.S. appeals from the Law Division's July 16, 2008 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues the State presented insufficient evidence to support his continued commitment. We affirm.
The predicate offense that resulted in R.S.'s commitment arose on September 27, 1997, after R.S. was released from prison in the spring of 1996 for another crime. On that day, R.S. and his co-defendant carjacked two victims at gunpoint. Thereafter, the police attempted to pull the vehicle over for speeding and a high speed car chase ensued that ultimately resulted in a crash. Subsequently, the police recovered a semiautomatic gun from the vehicle.
On June 5, 1998, R.S. pled guilty to carjacking, N.J.S.A. 2C:15-2, and was sentenced to a twenty-year prison term with a ten-year period of parole ineligibility. On December 27, 2007, approximately a week prior to R.S.'s parole eligibility date, the State filed a Petition for Civil Commitment under the SVPA.
On January 4, 2008, R.S. was temporarily committed to the STU. After a probable cause hearing, the judge found R.S. to be a sexually violent predator with a high likelihood of re-offending, and committed him to the STU for a period of twelve months. A full hearing was scheduled within twenty days, in accordance with N.J.S.A. 30:4-27.29; however, appellant waived the twenty-day hearing to pursue an interlocutory appeal. The hearing was thereafter set for a later date that year.
The present review was conducted on June 23 and 24, at which time Judge Serena Perretti considered the expert testimony and written reports of psychiatrist Howard Gilman, M.D., psychologist Timothy Foley, Ph.D. and psychologist Rosemary Stewart, Psy.D.
According to the testimony and reports presented, R.S. has had issues with sexual deviancy since as early as 1979, when he was charged with aggravated sexual assault and interference with custody of a child as a result of his relationship with a minor, W.W., who was eleven years old at the time. R.S. pled guilty to second-degree sexual assault, N.J.S.A. 2C:12-2(a)(1). R.S. was sentenced to a seven-year prison term.
Upon release, appellant was allegedly involved in another crime that involved the death of a man and rape of a woman in his apartment. On December 15, 1981, appellant was charged with homicide, N.J.S.A. 2C:11-3, sexual assault, N.J.S.A. 2C:14-2(c), terroristic threats, N.J.S.A. 2C:12-3 and two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a). R.S. was acquitted of all charges after a jury trial.
R.S.'s encounters with the law continued. On January 28, 1984, a few weeks after being released following the acquittal, appellant was arrested and charged with the rape of M.C. Police officers responded to the hospital emergency room where M.C. was admitted for injuries to her head, face and upper body. She told the responding officers she had been tied to R.S.'s headboard for approximately two days. M.C. revealed she had met R.S. on the street and he invited her to his apartment to drink. Later that evening, R.S. refused to allow her to leave. R.S. then forced her to take off her clothes and struck her with a nightstick. M.C. subsequently passed out and when she regained consciousness, she found herself tied to R.S.'s headboard. M.C. stated during her confinement, R.S. had sex with her multiple times and repeatedly threatened to "dope her up" with a needle.
R.S. claimed he met M.C. on the street and she asked him where she could purchase marijuana. After purchasing wine and marijuana, M.C. went to R.S.'s apartment where the two drank, smoked and had sex. R.S. claimed that M.C. then used his bathroom and attempted to steal money and jewelry from him, so he struck her with a nightstick. The two then had sex again.
On September 17, R.S. pled guilty to aggravated sexual assault and was sentenced to twenty years in prison with a ten-year period of parole ineligibility. Shortly after R.S's release from custody for the sexual assault of M.C., he committed the carjacking offense and was incarcerated.
Dr. Gilman testified that R.S. suffers from antisocial personality disorder and multiple substance dependence in institutional remission. Dr. Gilman opined R.S. is at high risk to sexually reoffend and that the affect such disorders have on R.S., emotionally and cognitively, predispose him to commit acts of sexual violence. Dr. Gilman posited R.S. would have serious difficulty controlling his sexually offending behavior as a result of his diagnoses as well as his history of sexually offending, lack of ability to conform to ethical and social norms, continued minimizations of his crimes and lack of treatment for sex offending or substance abuse.
According to Dr. Gilman, R.S. scored eight on the Static-99R test indicating a high risk to reoffend. In calculating this score, Dr. Gilman included the acquitted homicide and rape charges from 1984 but testified that those charges only amounted to one point. Therefore, Dr. Gilman concluded that, even without including these charges, R.S. would still be considered a high risk to offend.
Dr. Foley testified on behalf of R.S. He diagnosed R.S. with polysubstance dependence and antisocial personality disorder. He offered, however, those diagnoses do not meet the statutory definition for mental abnormality or personality disorder as required by the SVPA, and he opined that R.S. is not highly likely to commit sexually violent acts in the future. In reaching this determination, Dr. Foley relied upon the fact R.S. had no episodes of sexual misconduct over the last twenty-four years, the majority of which R.S. spent incarcerated. Dr. Foley noted that he considered R.S.'s relationship with the minor, W.W., in 1979 more than "just sexual exploitation" premised on the fact R.S. stated that he and W.W. had an ongoing romantic relationship as well as a child together.
Dr. Foley acknowledged R.S.'s high Static-99R score but opined that he felt it over-predicted R.S.'s risk to reoffend given his age, as sex offense recidivism decreases with age and R.S. is now in his fifties.
Dr. Stewart, the psychologist at the STU where R.S. is admitted, also testified. She concurred R.S. suffers from polysubstance dependence and antisocial personality disorder. Dr. Stewart testified she conducted an interview with R.S. and over the course of the interview, he admitted to abusing heroin, alcohol, marijuana and cocaine. R.S. discussed his discharge plans and indicated a desire to obtain employment and participate in substance abuse treatment. Dr. Stewart testified that from a traditional perspective, R.S. remains at high risk to sexually reoffend without protective factors and supervision in place. Without such supervision, she would not recommend his release. Dr. Stewart also used Static-99R to score R.S. and found him to scale at a plus seven.
In continuing R.S.'s civil commitment, the judge found the testimony of Dr. Gilman to be credible and his diagnosis not disputed by any of the other experts. The judge found there was clear and convincing evidence that R.S. suffers from an abnormal mental condition and personality disorder and, as such, was a sexually violent predator in need of commitment. In reaching this conclusion Judge Perretti stated,
All the persons testifying agree as to the diagnosis of this [appellant]. All agree that he is substance-dependent and has an anti-social personality disorder. All of the witnesses agree that these conditions combined and were in place at the time the [appellant] committed his two sexually violent acts.
It is clear and not disputed that this [appellant] committed his first sexually violent offense after previously having faced judicial proceedings. Upon release from prison on account of the [appellant's] first sexually violent offense, he committed a second sexually violent offense within months of release and while on parole supervision . . . it is clear that the [appellant] cannot be deterred from sexually violent offenses by prior incarceration or supervision.
The court is clearly convinced . . . that [appellant] is a sexually violent predator. He suffers from a diagnosed condition. . . . [T]hese conditions predispose him to commit sexually violent acts. . . .
[I]t is highly likely that the [appellant] will commit a sexually violent offense within the foreseeable future if he was not committed for treatment and for the protection of the public from the danger which he clearly presents.
An involuntary civil commitment may follow completion 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; N.J.S.A. 30:4-27.32(a).
[T]he State must prove that threat [to the health and safety of others because of the offender's likelihood of 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 judge must address "his or her present serious difficulty with control over dangerous sexual behavior[, ]" and the State must establish, by clear and convincing evidence, that it is highly likely that the committee will reoffend. Id. at 132-33 (emphasis added). See also In re Commitment of J.H.M., 367 N.J.Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.
In reviewing a commitment under the SVPA, our appellate review is "exceedingly narrow"; the trial court's decision should be given the "utmost deference" and will be subject to modification "only where the record reveals a clear abuse of discretion." In re Civil Commitment of W.X.C., 407 N.J.Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179, (2010), cert. denied, __U.S. __, 131 S.Ct. 1702, 179 L.Ed.2d 635 (2011). See also In re Commitment of J.M.B., 395 N.J.Super. 69, 89, (App. Div. 2007) (J.M.B. I), aff'd, 197 N.J. 563 (2009) (J.M.B. II); In re Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "[I]t is our responsibility to canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." W.X.C., supra, 407 N.J.Super. at 630 (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. J.M.B. II, supra, 197 N.J. at 597. See also State v. Locurto, 157 N.J. 463, 470-71 (1999). R.S.'s long-standing criminal history includes convictions and arrests for sexual offenses. Further, it is unrefuted that R.S. suffers from antisocial personality disorder and substance abuse problems as all three experts agreed on these diagnoses. Although the experts reached different conclusions as to R.S.'s risk of recidivism as indicated by the Static-99R test, the judge accepted Dr. Gilman's testimony that R.S.'s extensive criminal history and psychiatric profile demonstrated that he was at a high risk of reoffending.
We find no error and discern no abuse of discretion in this Court's ordering R.S.'s continued confinement to a secure facility for treatment. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of July 14, 2008. To the extent we have not specifically addressed the other arguments raised by appellant, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).