Opinion
DOCKET NO. A-4092-12T2 DOCKET NO. A-2748-13T2
06-23-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF C.S.B., SVP-102-00.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cameryn J. Hinton, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-102-00. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cameryn J. Hinton, Deputy Attorney General, on the brief). PER CURIAM
Appellant C.S.B. (Connor) appeals from the February 14, 2013 and December 23, 2013 orders 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 have consolidated the two appeals for purposes of this opinion. After reviewing the record in light of the applicable legal principles, we dismiss the February 14, 2013 order as moot, and affirm the December 23, 2013 order.
We use a pseudonym to protect the privacy of the committee.
We glean the following facts from the record. Between 1977 and 1980, Connor was charged with multiple sex offenses as a juvenile. In October 1980, at the age of eighteen, Connor committed the predicate crimes that led to his incarceration and subsequent civil commitment to the STU. Specifically, on October 3, 1980, Connor raped A.F., a fifteen-year-old girl, at knife point. Three days later, Connor raped L.L., a twenty-six-year-old woman, several times over the course of a three-hour period after having robbed her at knife point. Two separate jury trials were held, and Connor was convicted on two counts of first-degree aggravated sexual assault. For the conviction related to L.L., Connor was sentenced to fifteen years in state prison with seven and one-half years of parole ineligibility. For the A.F. conviction, he was sentenced to a consecutive twenty year term with a ten-year parole disqualifier to be served at the Adult Diagnostic and Treatment Center.
Little information is known about these offenses, most of which were either dismissed or resulted in probation.
Prior to Connor being released, the State filed a petition to declare Connor a sexually violent predator pursuant to N.J.S.A. 30:4-27.28. The court entered a temporary order of commitment on July 20, 2000, and issued an order of commitment on August 7, 2000. Prior to the hearings now on appeal, Connor had nine review hearings, which continued his commitment. Connor appealed three of these orders, which we affirmed. See In re Civil Commitment of C.S.B., No. A-0626-05 (App. Div. Dec. 19, 2005); In re Civil Commitment of C.S.B., No. A-4705-05 (App. Div. Mar. 14, 2007).
On February 11, 2013, Judge James F. Mulvihill conducted a review hearing. At the hearing, the State presented the expert testimony of Drs. Marta Scott and Debra Roquet. Connor presented the expert testimony of Dr. Timothy Foley.
Dr. Scott diagnosed Connor with paraphilia NOS, substance abuse, antisocial personality disorder, and borderline intellectual functioning. She testified that Connor's mental and personality disorders predisposed him to commit future acts of sexual violence and, consequently, that he remained highly likely to reoffend. In support, Dr. Scott noted that Connor has had a lackluster response to treatment and that his cognitive limitations did not fully explain his lack of treatment progress. While acknowledging that Connor committed the crimes long ago, she opined that his personality disorder would not spontaneously remit.
"Borderline intellectual functioning refers to an IQ in the 71 to 84 range." Connor has been shown to have an IQ between 66 and 71.
Dr. Roquet, a member of Connor's Treatment Progress Review Committee (TPRC), agreed with many of the diagnoses of Dr. Scott; the only difference was that she diagnosed Connor as having provisional paraphilia NOS. She testified that Connor has made progress in treatment, but that it was slower than she would have liked. Specifically, she noted that Connor has struggled with completing the relapse prevention module, failed to have a relapse prevention plan, and needed to work on his coping and adaptive functioning skills, which she explained were important to help Connor face and overcome negative emotions or situations. She opined that Connor's lack of progress was due more to his dismissive and sometimes hostile attitude rather than any cognitive limitations since assistance is available to Connor and his ability to pass several of the modules indicated that he did not need to be assigned to a cognitive life skills process group.
Dr. Foley, testifying on behalf of Connor, diagnosed him with antisocial personality and borderline intellectual functioning. He opined that there was insufficient information to support a diagnosis of paraphilia. He stated that Connor's cognitive limitations have hindered his ability to progress in treatment, but concluded that Connor was not likely to reoffend based on his age, the length of time since he committed the crimes, and because the rate of sex offense recidivism declines by fifty percent between the ages of twenty-five and forty-five. Dr. Foley recommended that Connor be discharged subject to several conditions including random drug and alcohol screening, GPS monitoring, and supervised living.
Judge Mulvihill issued an oral opinion on February 13, 2013. The judge found the State's experts to be more credible and, consequently, determined that the State had proved by clear and convincing evidence each element required for commitment under the SVPA. Specifically, the judge noted that there was no dispute as to the first element as Connor was "convicted of two sexually-violent offenses[.]" While acknowledging that the experts disagreed as to Connor's mental and personality disorders, the judge found that there was clear and convincing evidence that Connor suffered from antisocial personality disorder, and that it does not spontaneously remit, but may lessen with age and treatment. The judge also concluded that Connor remained at high risk for reoffending despite the fact "that the bar to moving forward [is] not . . . set very high[.]" Connor appealed from this determination.
At Connor's next annual review hearing, held on two non-consecutive days in late 2013, Judge Philip M. Freedman presided. The State presented the expert testimony of Drs. Roquet and John Zincone. Connor presented expert testimony from Dr. Foley and Brian Nolan, an investigator for the Public Defender's Alternate Commitment Unit.
Dr. Zincone diagnosed Connor with other specified, non-consensual paraphilia, alcohol and drug abuse, antisocial personality, and borderline intellectual functioning. He testified that he diagnosed Connor with paraphilia based on the fact that the predicate offenses involved strangers, occurred close in time, that threats and weapons were used, and that they occurred in public areas. In particular, Dr. Zincone testified that the predicate offenses indicated that Connor had a "deeply ingrained deviant arousal." He opined that the antisocial personality disorder made it difficult for Connor to control impulsive behaviors or to cope with stressful situations, and this chronic disorder required treatment.
Dr. Zincone acknowledged that Connor's cognitive limitations had some impact on his treatment progress, but attributed most of the lack of progress to Connor's general resistance and attitude towards treatment and his treatment providers. He testified that Connor remains at high risk of reoffending as he does not have an adequate understanding of relapse prevention concepts, which Dr. Zincone explained were essential because they would give Connor the tools necessary to cope with difficult situations. He also found that Connor's substance abuse problems further contributed to his likelihood of reoffending as drugs and alcohol are "disinhibitors[,]" which can and do lead to poor judgments. Consequently, he recommended that Connor remain committed for further treatment.
Dr. Roquet again diagnosed Connor with provisional paraphilia NOS, antisocial personality disorder, alcohol and marijuana abuse, and borderline intellectual functioning. She testified that Connor remains in the early stages of Phase three, where treatment focuses on mitigating the risk of reoffending. She noted that Connor has been making some progress in treatment as his attitude and response to treatment has changed since the last review hearing. Even so, she opined that Connor could still benefit from treatment as he has had occasional regressive episodes, continued to withhold information, and failed to fully explore the details of his sexual offense history, thereby contributing to Connor's resistant attitude. Dr. Roquet testified that additional treatment, particularly in the areas of substance abuse, coping skills, and relapse prevention strategies, were necessary before Connor could be released.
Dr. Foley again diagnosed Connor with antisocial personality disorder and borderline intellectual functioning. He rejected the State's expert's findings of paraphilia. Dr. Foley acknowledged that Connor's lack of progress was due in part to his attitude, but reasoned that it was also attributable to his cognitive limitations. He opined that Connor would not benefit from further treatment in a confined facility; rather, he suggested that Connor receive outpatient treatment to help him deal with day-to-day stressors. As such, he recommended that Connor be conditionally discharged subject to several restrictions including GPS monitoring and supervised housing.
Nolan testified as to the details of Connor's proposed discharge plan. He testified that Comfort Care, a Class C boarding home, was an appropriate residence for Connor as it had previously housed three other former STU committees, it was near friends and family who could help support Connor, and was in close proximity to job training and sex offender services.
Class C boarding home means "that residents are provided three meals a day and laundry services." --------
On December 23, 2013, Judge Freedman issued his oral opinion, finding that Connor should remain committed as the State had proven by clear and convincing evidence the elements under the SVPA. In making his determination, Judge Freedman found Dr. Zincone's testimony to be more credible than Dr. Foley with respect to whether Connor suffered from a paraphilia. Judge Freedman recognized that Connor was "doing better," but agreed with the State's experts that he needed further treatment as he had not adequately addressed or incorporated coping and adaptive strategies necessary to prevent a relapse. He also accepted Dr. Zincone's testimony that Connor continued to struggle with a substance abuse problem, which if untreated, could increase his risk of reoffending.
In continuing Connor's commitment, Judge Freedman concluded that Connor's age, the remoteness of his crimes, and his willingness to admit to committing the L.L. offense were insufficient to overcome the State's proof that he continued to pose a high risk for reoffending. The judge gave great weight to the credible expert opinions that Connor's lack of progress in treatment was due to his resistant attitude, rather than his cognitive limitations. The judge noted that by his recent progress, Connor demonstrated that he can succeed in treatment if he chooses to participate.
On appeal, Connor contends that the trial courts erred in finding that he currently suffers from a mental abnormality that makes him highly likely to engage in an act of sexual violence if his commitment at the STU is not continued. We disagree.
We first note that Connor's appeal of Judge Mulvihill's February 14, 2013 recommitment order is moot and as such, we decline to address it. See Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) ("An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.") (internal citations omitted). An appeal of a final hearing in an SVPA case may be rendered moot if, at the time of the appeal, the committee is committed as the result of an annual review hearing. See In re Commitment of J.J.F., 365 N.J. Super. 486, 499 n.1 (App. Div.), certif. denied, 179 N.J. 373 (2004). In such a case, the previous hearing may only be relevant insofar as the court relied on that hearing during its annual review. Ibid.
Here, Judge Freedman elicited new expert testimony to determine whether Connor presently has "serious difficulty" controlling his "dangerous sexual behavior." In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002). It is clear from the record that Judge Freedman did not rely on Judge Mulvihill's order in making his determination to continue Connor's commitment. Moreover, we note that both appeals raise the same arguments, which we have previously addressed in Connor's earlier appeals. See In re Civil Commitment of U.C., 423 N.J. Super. 601, 608 (App. Div.) (discussing when courts will address issues in an appeal notwithstanding the fact that the appeal is moot), certif. denied, 212 N.J. 430 (2012).
The applicable law is well-settled. Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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. As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127. The statute does not require a "complete loss of control[.]" Id. at 128. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; see also In re Civil Commitment of R.F., 217 N.J. 152, 173-74 (2014).
At the SVPA commitment hearing, the State must prove:
a threat to the health and safety of others because of the likelihood of [an SVPA offender] 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.The court must address an individual's "serious difficulty in controlling sexually harmful behavior," ibid., and the State must establish by clear and convincing evidence that it is highly likely that the individual will reoffend. R.F., supra, 217 N.J. at 173.
[W.Z., supra, 173 N.J. at 132.]
After an SVPA offender has been initially committed, 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 State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a).
As the Supreme Court recently emphasized in R.F., supra, the scope of appellate review of judgments in SVPA commitment cases "is extremely narrow." 217 N.J. at 174 (internal quotation marks and citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). On appeal, we give deference to the judicial findings from the commitment hearings, not only in recognition of the SVPA judge's expertise, but also because the judge has "the 'opportunity to hear and see the witnesses' and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
For these sound reasons, the Supreme Court has directed that an appellate court should not modify the SVPA trial judge's "determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Applying these deferential principles here, we affirm the order directing Connor's continued commitment, substantially for the reasons set forth by Judge Freedman in his oral decision of December 23, 2013. Judge Freedman fully explained his findings in his oral decision, which were based on Connor's offenses, conduct, and treatment history, as well as the credible testimony of Drs. Zincone and Roquet. Thus, we are satisfied from our review of the record that the judge's findings were supported by substantial credible evidence. See ibid.
We are mindful that the record shows that Connor has made some progress in his treatment within the STU. Even so, both Drs. Zincone and Roquet cautioned that further treatment was necessary as Connor has not adequately addressed his mental abnormality or fully incorporated the treatment's strategies and techniques into his daily life. Further, the State's experts and Judge Freedman expressed concern that Connor uses his cognitive limitations as a crutch rather than trying to address and overcome his harmful behaviors. Thus, ample grounds exist to support Judge Freedman's conclusion that Connor presently remains "highly likely" to reoffend and that the statutory criteria for Connor's commitment continue to be met. W.Z., supra, 173 N.J. at 132; see also N.J.S.A. 30:4-27.26, -27.32(a).
We dismiss A-4092-12 as moot, and affirm A-2748-13. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION