November 25, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W., SVP-279-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 12, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-279-02.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant
N.M.W. (Joseph E. Krakora, Public Defender, attorney) Erin Marie Greene, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
Before Judges Parrillo and Kennedy.
N.M.W. appeals from the March 7, 2013 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the trial court erred in giving undue credit to the State's expert witnesses, and that the trial court erred in determining that N.M.W. was highly likely to commit acts of sexual violence in the future. N.M.W. asserted during oral argument that the State failed to show that he currently suffers from a mental condition which makes it likely that he will act out with sexual violence. Having reviewed the record and considered the arguments, we affirm.
N.M.W. is thirty-one years of age and has been civilly committed to the STU since November 2002. N.M.W. had an extensive criminal history prior to his incarceration for the predicate offense, including fourteen arrests for non-sexual offenses and three arrests for sexual offenses. We have previously set forth in detail, and will not repeat here, except for the predicate offense, N.M.W.'s past history of sexually violent conduct and aberrational sexual behavior. In re Civil Commitment of N.M.W., No. A-4405-08 (App. Div. Jan. 8, 2010) (slip op. at 1-3).
On December 22, 1997, N.M.W. approached a woman from behind, pointed a gun at her, forced her into a stairwell and had forcible sexual intercourse with her. Before leaving, N.M.W. punched, kicked, choked and threw bricks at the woman. N.M.W. was fifteen at the time of the incident. Later that day, it is alleged that N.M.W. sexually assaulted and robbed another female victim at gunpoint.
On January 4, 2000, after waiver to the Law Division, N.M.W. pled guilty to an amended charge of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), for his offenses against the first woman. He was sentenced to a five-year prison term, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
While incarcerated, N.M.W. received twenty-five disciplinary infractions, nine of which were sexually related. Many of the infractions were violent, including assaulting an officer, possession of a shank, and threatening to harm others.
In October 2002, before N.M.W. was scheduled to complete his sentence, the State petitioned for his involuntary civil commitment pursuant to the SVPA. On November 19 and December 18, 2002, a final commitment hearing was held, and the court entered an order for N.M.W.'s commitment. Since his initial commitment, N.M.W. has been recommitted to the STU during all annual review hearings and this court has affirmed those recommitments. See In re Civil Commitment of N.M.W., No. A-3882-09 (App. Div. Dec. 17, 2010) (slip op. at 2-3); In re Civil Commitment of N.M.W., No. A-4102-11 (App. Div. Aug. 15, 2012) (slip op.).
At the review hearing on March 7, 2013, the State presented testimony from Dr. Alberto Goldwaser, a psychiatrist, and from Dr. Nicole Paolillo, a psychologist and a member of the Treatment Progress Review Committee (TPRC) at the STU. N.M.W. presented no witnesses.
According to both Dr. Goldwaser and Dr. Paolillo, N.M.W. suffers from paraphilia NOS non-consent, exhibitionism, antisocial personality disorder, and substance dependence.
Dr. Goldwaser interviewed N.M.W. on February 26, 2013 and prepared a report based on that evaluation. Dr. Goldwaser testified that N.M.W.'s antisocial personality disorder "manifests with inappropriate emotional responses, interpersonal problems, difficulty controlling his impulses to what society expects and accepts. This results in violation of rights of others." N.M.W.'s paraphilia was described as a "recurrent and intense experience of sexual urges, fantasies, or behaviors involved in sexual arousal to person who by virtue of, in this case,  employed force are unable to consent."
When asked to evaluate N.M.W.'s progress in treatment, Dr. Goldwaser stated that N.M.W. is still in the very early stages of treatment and that "treatment is having a minimal effect." He still does not accept full responsibility for all of the incidents, or even acknowledge that some of the incidents occurred. N.M.W.'s constant excuses for his misbehavior, including blaming his victims, is an obstacle to successful treatment, according to Dr. Goldwaser, who opined that N.M.W. is still at high risk to reoffend unless he is held at the STU.
Dr. Paolillo, a member of the TPRC team which evaluated N.M.W. for the annual review, also testified that N.M.W. is in the early stages of treatment. The TPRC recommended that N.M.W. remain in Phase II of treatment, the introductory phase during which residents are introduced to the basic concepts and curriculum of treatment. Paolillo testified that, despite being in STU for nearly a decade, the treatment staff characterized N.M.W. as "manipulative, impulsive and attention seeking[, ]" and consistently notes that he still does not have "even a[n] introductory knowledge of the treatment concepts."
Additionally, N.M.W. has not addressed his sexual assault cycle, relapse prevention or victim empathy. Further, he is inconsistent in attendance and participation in process groups, and shows minimal progress in his ability to utilize therapy effectively, and addressing his inadequate coping skills.
Dr. Paolillo noted that N.M.W. has been placed on Modified Activities Program (MAP) status several times a year for violations. The numerous MAP violations have resulted in frequent breaks in his treatment and indicate that he has not conformed to rules during his institutionalization, especially the rules related to sexual control.
The TPRC concluded that "given his limited treatment effect, poor behavioral control, intense arousal, and difficulty adhering to the rules of the facility[, ] [N.M.W.] continues to remain at high risk to sexually recidivate if not confined to the STU."
Following the conclusion of testimony, Judge Mulvihill found both Dr. Goldwaser's and Dr. Paolillo's testimony credible. Judge Mulvihill stated that:
I find that the State has proven by clear and convincing evidence, number one, that [N.M.W.] has been convicted of a sexually violent offense. Number two, that he suffers from a mental abnormality, personality disorder that does not spontaneously remit, that predisposed him to sexual violence, affects him emotionally, cognitively, volitionally.
He is still acting out in the STU. He is still staring at females. He is still . . . on MAPS where he's compulsive to masturbate in front of people, especially women, and that he has serious difficulty controlling sexual violent behavior.
Clear and convincing evidence that he is presently highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care, and treatment.
That he is a danger to the public health presently, because of his mental abnormality, personality disorder that has not been mitigated by sufficient treatment.
He is making progress, but it's very slow progress. . . . He is a threat to the health and safety of  women and  he has some male victims as well. Highly likely by clear and convincing evidence that he will engage in sexual violent acts.
This appeal follows.
Pursuant to 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 over dangerous sexual behavior[, ]" and the State must establish "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-33 (emphasis added); see also In re Civil 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 individual 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 individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in In re Commitment of W.Z., supra, 173 N.J. at 126-32. "[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 judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow[, ]" and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J.Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of March 7, 2013.