November 25, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF K.J., SVP-475-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-475-07.
Patrick Madden, Assistant Deputy Public Defender argued the cause for appellant K.J. (Joseph E. Krakora, Public Defender, attorney).
Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
Before Judges Parrillo and Kennedy.
K.J. appeals a Law Division order continuing his commitment to the New Jersey Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
We have considered an earlier appeal by K.J. confining him to the STU. In re Commitment of K.J., No. A-3325-07 (App. Div. June 14, 2010). We incorporate here the factual recitation in our earlier opinion affirming K.J.'s initial civil commitment.
K.J. was born on December 4, 1963, and is forty-nine years of age. In November 1988, at age twenty-six, K.J. committed a series of sexually violent offenses, involving several women, over a period of eight days. K.J. was indicted for various sexual offenses, as well as other offenses, based on those incidents. On December 18, 1989, following a jury trial, K.J. was convicted of: (1) first-degree robbery, N.J.S.A. 2C:15-1; (2) second-degree sexual assault, N.J.S.A. 2C:14-2(c); (3) fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d); (4) second-degree burglary, N.J.S.A. 2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); (5) third-degree terroristic threat, N.J.S.A. 2C:12-3; and (6) possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). K.J. was given an aggregate sentence of thirty-five years incarcerations.
In the interim, in September 1990, appellant pled guilty to: (1) first degree robbery; (2) second degree attempted aggravated sexual assault, second degree attempted sexual assault, and second degree sexual assault; (3) third degree terroristic threats and two counts of third degree possession of a weapon for an unlawful purposes; and (4) fourth degree unlawful possession of a weapon.
On July 5, 2007, while he was serving his sentence at Riverfront State Prison, Christine L. Kokonos, Psy.D, evaluated K.J. as part of a sexually violent predator risk assessment. K.J., supra, No. A-3325-07 (slip op. at 6-7). "Kokonos concluded that although [K.J.] did not meet the criteria for a standard mental health commitment, he nonetheless met the criteria for diagnosis as a 'repetitive sex offender.'" K.J., supra, No. A-3325-07 (slip op. at 7).
On October 16, 2007, K.J. was diagnosed by Dr. Kokonos with the following mental abnormalities and/or personality disorders: (1) Paraphilia, not otherwise specified (sexually aroused to rape); (2) Polysubstance Dependence; (3) Antisocial Personality Disorder; and (4) Impulse Control Disorder (sexually related). The State filed a petition for K.J.'s civil commitment under the SVPA. On February 28, 2008, following a final commitment hearing, the trial court found that K.J. was a sexually violent predator, and ordered that he be remanded to the STU. We affirmed, and explained, "[i]n her oral opinion, the trial judge found that the State had clearly and convincingly proven that [K.J.] was 'highly likely to commit sexually violent offenses in the foreseeable future if not committed as a sexually violent predator for care in a secure environment.'" K.J., supra, No. A-3325-07 (slip op. at 20).
On April 16, 2013, Judge John H. Pursel, held an annual review hearing. Judge Pursel heard the testimony of three witnesses. The State presented the testimony of Dr. Indra K. Cidambi, a psychiatrist, and Dr. Christine E. Zavalis, a forensic psychologist, and a member of the Treatment Progress Review Committee ("TPRC") at the STU. K.J. presented the testimony of Dr. Timothy P. Foley, a psychologist. In addition, the court reviewed treatment notes and other records.
Dr. Cidambi and Dr. Zavalis diagnosed K.J. as suffering from: (1) paraphilia, NOS; (2) personality disorder NOS, with antisocial features; and (3) number of substance dependence and abuse issues. Both doctors found that K.J. was in the high-moderate risk category for sexual recidivism and noted his score of "5" on the Static-99R, a test that measures the likelihood of an individual to sexually reoffend.
Dr. Cidambi testified that K.J. was highly likely to sexually reoffend in the foreseeable future, unless placed in a secured facility for treatment. Her conclusion was based on K.J.'s repetitive and compulsive behavior, his victims were strangers, his use of a weapon during some of his offenses, as well as his continued denial of his offenses. Dr. Cidambi stated that while K.J. has been proactive in his treatment, "there is more that he needs to learn to mitigate his . . . risk factor." She opined that he needed more treatment to deal with his anger issues, and his deviant arousal.
Dr. Zavalis testified that K.J. was highly likely to reoffend and noted that K.J. gave "inconsistent versions of his offenses." She added that the TPRC recommended that K.J. "address the inconsistencies between his version and the victims' version, " of the offenses. She explained that K.J. required continued participation in treatment at STU.
K.J.'s expert, Dr. Foley testified that his diagnostic "impressions" of K.J. were drug and alcohol dependence, and anti-social traits. Dr. Foley explained that K.J. was not highly likely to commit acts of sexual violence, as he believed that his score on the Static-99 did not equate with the statutory threshold. He added that appellant's age and treatment reduced his likelihood to reoffend. Dr. Foley recommended that K.J. be conditionally discharged, with the following conditions: "approved residence, frequent and random drug and alcohol testing, GPS monitoring, a curfew, continued substance abuse treatment, and sex offender specific treatment."
Judge Pursel noted that K.J.'s "progress has been good at the STU[, ]" but that K.J. is "less than genuine or disingenuous" in discussing his treatment. The judge further found that K.J. lied to his own doctor about his sexual assault conviction and that "there is still a pattern of denial in [K.J.]'s course of treatment, even to his own psychologist."
[wa]s satisfied that the [S]tate ha[d] presented clear and convincing evidence, without discounting [K.J.'s] progress in treatment, that he committed a sexually violent offense, that he remains a violent sexual predator in need of confinement for care and treatment, and that he suffers from the mental disease and defects . . . as set forth by Dr. Cidambi and by Dr. Zavalis. Specifically, personality disorder not otherwise specified with antisocial features, and paraphilia NOS provisionally.
This appeal followed.
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 trial judge's findings were supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons set forth by Judge Pursel in his oral opinion of April 16, 2013.