Opinion
DOCKET NO. A-1200-12T2
03-18-2013
IN THE MATTER OF THE CIVIL COMMITMENT OF L.M.R., SVP-557-10.
Amy Beth Cohen, Deputy Attorney General, argued the cause for appellant State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Ms. Cohn, on the brief). Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for respondent L.M.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Latimer, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-557-10.
Amy Beth Cohen, Deputy Attorney General, argued the cause for appellant State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the brief; Ms. Cohn, on the brief).
Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for respondent L.M.R. (Joseph E. Krakora, Public Defender, attorney; Mr. Latimer, of counsel and on the brief). PER CURIAM
The State appeals from an October 18, 2012 order declining to continue L.M.R.'s civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and ordering his release from the Special Treatment Unit (STU). By order dated November 15, 2012, we stayed L.M.R.'s release and expedited this appeal. Having reviewed the record, we now affirm the order on appeal.
I.
In 2003, L.M.R. (defendant) pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to seven years in prison, half to be served without parole, plus community supervision for life (CSL) pursuant to Megan's Law. See N.J.S.A. 2C:43-6.4d. The guilty plea was based on a 2002 incident in which defendant, who was intoxicated at the time, attempted to sexually assault his paramour's fourteen-year-old daughter. L.M.R. desisted after the victim's younger brother came into the room and interrupted the assault. Defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), but was found not to be a repetitive and compulsive sex offender, in part because he had no prior arrests or convictions for sexual offenses.
Defendant did have prior convictions for burglary, shoplifting, and drug offenses.
In his ADTC report, Dr. Mark Frank discounted defendant's explanation of the incident. Defendant claimed that he did not attempt to have sex with the victim but only entered her bedroom in the hope that she would tell her mother, who in turn would "call the police and have him arrested." Defendant said he wanted to get arrested because he needed substance abuse treatment. Dr. Frank noted defendant's long history of substance abuse; he recommended intensive treatment for that problem, plus psychotherapy to help L.M.R. understand why he committed the offense and avoid a recurrence.
On October 2, 2007, while on parole for the 2003 conviction, L.M.R. was arrested and charged with a second sex-related offense. At the time, he was employed as a maintenance worker in an apartment building. At about 10:15 a.m., he entered one of the apartments, for which he had a master key, and began touching the buttocks of a woman who was sleeping in the apartment. He fled after she awoke and yelled at him. On June 9, 2009, defendant pled guilty to third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b and -2c(1). He was sentenced to three years in prison with 444 days of jail credit, since he had been incarcerated since the date of his arrest.
Apparently, the State did not indict defendant for violating CSL in connection with the second incident. See N.J.S.A. 2C:43-6.4d.
While still incarcerated at Midstate Correctional Facility for the 2007 offense, L.M.R. was evaluated by a psychologist, Dr. Kenneth H. Vaughan, who found, based on three different assessment modalities, that L.M.R. had a medium risk, a high risk, or a medium-high risk of re-offending. The evaluator referred L.M.R.'s case to the Attorney General for review for commitment under the SVPA, due to his two convictions for sexually related offenses. The Attorney General applied for commitment, and L.M.R. was first committed to the STU by order dated February 26, 2010.
Apparently, no initial commitment hearing was held, because L.M.R. filed a post-conviction relief petition seeking to withdraw his 2009 guilty plea. But it would be a misnomer to refer to his STU commitment as "temporary." While awaiting the outcome of his legal challenge, L.M.R. spent "21 months" as "a resident at the STU." He was placed in a treatment orientation group and an "ELS" (English as a second language) program, because he could not speak English.
On October 28, 2011, defendant's 2009 criminal conviction was set aside, based on his claim that he pled guilty without being informed that he might be civilly committed after serving his prison term. Because his guilty plea to the predicate offense had been vacated, on November 17, 2011, defendant's civil commitment was vacated without prejudice. He was released from the STU and transferred to the Passaic County Jail pending the disposition of the reinstated criminal charges. After several months of pre-trial incarceration in the jail, defendant once again pled guilty to the charges on February 27, 2012, was sentenced to time served on March 5, 2012, and was "returned to the STU on July 23, 2012."
In preparation for his long-delayed initial commitment hearing, L.M.R. was examined by three different mental health professionals -- Dr. Alberto M. Goldwaser, Dr. Rosemarie V. Stewart and Dr. Christopher P. Lorah. Dr. Goldwaser concluded that L.M.R. was at a high risk to re-offend and should remain committed to the STU. Dr. Stewart and Dr. Lorah opined that L.M.R. was not at a high risk to re-offend, and that his mental health and substance abuse problems could be treated in the community.
In their reports, neither Dr. Stewart nor Dr. Lorah relied on CSL as an independent basis for concluding that L.M.R. was not at a high risk to re-offend. Rather, Dr. Stewart opined that CSL provided a vehicle by which L.M.R. could be monitored to ensure that he participated in the programs he needed in order to avoid re-offending. For example, Dr. Stewart opined that refraining from drugs and alcohol would be essential to L.M.R.'s ability to avoid re-offending. She opined that regular drug testing would be very helpful, and such testing would be available through the parole structure of CSL. Dr. Lorah noted that, even without having had any sex offender therapy, L.M.R. appeared able to identify situations that could lead to re-offense, and was able to discuss ways he could avoid those situations.
The hearing was held before Judge James F. Mulvihill on October 3 and October 12, 2011. The experts provided testimony consistent with their respective reports. According to Dr. Goldwaser, L.M.R. was evasive in describing the sexual assault on the fourteen-year-old girl; L.M.R. claimed he committed the assault in order to get drug treatment, although he had been in at least four prior drug treatment programs. According to Dr. Goldwaser, the fact that L.M.R. committed the second offense while on CSL and parole showed that neither incarceration nor supervision deterred him from re-offending. L.M.R. also denied that he sexually molested the woman in the second incident. Dr. Goldwaser further opined that L.M.R.'s earlier history of committing burglaries and drug offenses while on parole showed the ineffectiveness of parole supervision. He acknowledged that defendant had a serious substance abuse problem, which would affect his ability to refrain from committing sexual offenses.
All of the expert reports were admitted in evidence and thus are in the record.
Dr. Goldwaser diagnosed L.M.R. with paraphilia NOS, non-consent, and anti-social personality disorder. He described the paraphilia as an intense sexual arousal associated with forcing sex on a non-consenting victim. He noted that L.M.R. had available sexual partners but chose non-consenting victims. The anti-social personality disorder was marked by a repeated pattern of failing to conform to societal norms, but instead "doing whatever he felt like doing" regardless of the consequences, and showing no remorse. The personality disorder and the substance abuse problem "increased dramatically his difficulty controlling himself."
Based on those factors, Dr. Goldwaser opined that L.M.R. was highly likely to re-offend if released, either on CSL or with additional conditions imposed by the court. He agreed that on the Static-99R test, L.M.R. scored a five, which demonstrated a "high moderate risk of sexual re-offending." That test incorporated L.M.R.'s paraphilia, anti-social personality disorder and substance dependence.
Noting that L.M.R. was forty-two years old at the time of the 2002 offense, Judge Mulvihill questioned Dr. Goldwaser about the likelihood of a paraphilia suddenly manifesting itself for the first time at that age. Dr. Goldwaser responded that it did not happen in the majority of cases "but it does happen." The judge also asked Dr. Goldwaser whether the 2007 incident could be a "de-escalation" of L.M.R.'s offending, since he used no force and desisted when the victim yelled at him. Dr. Goldwaser admitted that the incident was "a de-escalation of sexual acting out." The judge further questioned the doctor closely about how sure he was that L.M.R. was "highly likely" to re-offend, based on Dr. Goldwaser's experience in evaluating dozens of sex offenders. Dr. Goldwaser stated that L.M.R. was "highly likely" to commit some sort of sexual offense, but admitted he could not predict the "magnitude of the offense."
Called as L.M.R.'s witness, Dr. Lorah testified that the 2007 offense "really falls on the lower end of the victim impact scale." For reasons he explained in some detail, he opined that L.M.R. did not suffer from paraphilia NOS. He testified that such a diagnosis was only appropriate in cases where a defendant has committed multiple violent rapes. He found no evidence that L.M.R. was sexually aroused by the non-consenting aspect of sexual encounters. Otherwise, he would expect to see an escalation of violence in L.M.R.'s offenses. He also explained that if L.M.R. had paraphilia, he would have been sexually encouraged, not discouraged, when the 2007 victim screamed. He opined that the 2007 offense was "a crime of opportunity," not a symptom of paraphilia.
He also did not diagnose L.M.R. as having anti-social personality disorder. Dr. Lorah recommended that L.M.R. receive sex offender treatment, but "in a less restrictive environment" than the STU. He also recommended that L.M.R. receive drug treatment in the community.
On cross-examination, Dr. Lorah clarified that, while L.M.R. displayed adult anti-social behavior, he did not find that L.M.R. suffered from a mental health abnormality that predisposed him to commit sexual offenses. However, he admitted that if L.M.R. were released into the community without CSL or some other form of supervision, he could be at a "moderate high" risk to commit a sexual offense. He also believed that drug abuse would increase his risk to commit another offense, sexual or non-sexual in nature. In response to questions from Judge Mulvihill, Dr. Lorah testified that, despite L.M.R.'s criminal record, he did not find that L.M.R. had personality disorder NOS with anti-social traits.
L.M.R. also presented testimony from Dr. Stewart. She did not diagnose L.M.R. with paraphilia, for the same reasons cited by Dr. Lorah. Like Dr. Lorah, she testified that it was unusual for paraphilia to suddenly manifest itself in middle age. Further, she noted that L.M.R.'s second offense was a de-escalation from the first, and he backed off when the victim screamed. None of those characteristics were typical of paraphilia. Instead, she diagnosed L.M.R. with personality disorder NOS with anti-social features, and drug addiction. Dr. Stewart administered a Psychopathy Checklist - Revised (P.C.L.R.) test and scored L.M.R. as "a 24" which did not "meet the construct of psychopathy. But it is on the border of the moderate and high range." She explained that L.M.R. tended to be self-centered, taking what he needed from other people with little empathy. Substance abuse would tend to further dis-inhibit him from that "tendency . . . to take what you want, regardless of whether it impacts anyone else."
She opined that the sexual crimes he committed were "a combination of his personality structure and his drug-induced state, and the fact that there were opportunities which can be monitored." Dr. Stewart testified that defendant "still poses a significant risk of sexual offending, but not the level of risk required by the statute to commit someone to the S.T.U. It doesn't fall, in my opinion, into the highly likely range." She based this conclusion on defendant's age, the availability of CSL supervision, his family support, his limited history of sexual offenses, the absence of paraphilia, and other factors detailed in her testimony. She noted that L.M.R. planned to live with his brother, a recovered addict who had been clean and sober for years and would be able to help support L.M.R. in staying away from substance abuse.
Dr. Stewart testified that she was also impressed with L.M.R.'s insight into what he needed to do "to prevent relapse." Those activities included
needing to stay busy, to keep at work, not work in people's homes. To not . . . be a super or have access to people's apartments and keys. Not living with children, he's aware of. He's aware of staying away from drugs and alcohol as one of the primary risk
factors for him. And he's aware that he should stay away from situations and people who use drugs and alcohol.
He had a fairly decent understanding of those risk factors, despite not having any treatment. So he knows what he has to do. There will be parole in place to monitor what he's doing. And as I said, based on his limited history, he doesn't appear to me to reach the level of risk that this institution was built for. Which are the highly likely sex offenders.
Dr. Stewart further considered L.M.R.'s self-report that he had been "clean" of drugs and alcohol since 2002, and that there were no reports of his using drugs in prison or while on CSL after his release. She was also satisfied with his discharge plan, to live with his brother, and his mother. She further testified that, "for somebody who is more driven by antisocial tendencies than he is by a paraphilia, there is a burnout effect that should be evident by the time he's in his fifties." In response to Judge Mulvihill's question, Dr. Stewart explained that if L.M.R. were to violate the conditions of CSL by using drugs, that might raise his risk profile, and the State could once again seek to have him temporarily committed to the STU.
In an oral opinion issued on October 12, 2012, Judge Mulvihill found Dr. Stewart to be the most credible of the three experts. He found her testimony "extremely" credible. He found that defendant suffered from personality disorder N.O.S. with anti-social features. The judge did not credit Dr. Goldwaser's testimony diagnosing paraphilia or his testimony that L.M.R. was highly likely to re-offend if released. He accepted Dr. Stewart's testimony that the 2002 offense "was a crime of opportunity." The judge found that the 2007 offense was a de-escalation of sexual offending.
Consequently, the judge did not find clear and convincing evidence that L.M.R. was highly likely to re-offend if not confined in the STU. He credited Dr. Stewart's testimony that L.M.R.'s risk was "less than highly likely" and that he could be successfully supervised in the community. The judge also made some recommendations as to the terms of defendant's parole supervision, consistent with Dr. Stewart's testimony.
II.
On this appeal, our review of the trial judge's decision is extremely limited, and that circumscribed level of review is the same whether the State has prevailed or lost before the trial court. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) ("The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow."). We will disturb that decision only where there was a clear abuse of discretion, and it 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." 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). In light of the judge's expertise in handling these cases, we "must give the 'utmost deference' to [his] determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 179 N.J. 563, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
Given our deferential standard of review, we find no basis to reverse Judge Mulvihill's decision. It is clear to us, even on a cold record, that the judge was very skeptical of Dr. Goldwaser's opinion that L.M.R. was highly likely to re-offend. Viewed through the lens of the judge's extensive experience, that is understandable. L.M.R. is not a convicted rapist or child molester. His second offense, touching a woman's buttock and fleeing when she yelled at him, was considerably less serious than his first offense. Two experts, one of whom the judge found "extremely" credible, opined that L.M.R. did not have paraphilia and was not highly likely to re-offend if released. That is also consistent with L.M.R.'s evaluation on the Static-99R.
Raising an argument not presented before the trial court, the State argues that in an SVP commitment hearing, the judge may not consider the availability of CSL as a factor in determining the likelihood of re-offense. We conclude that the State is barred from raising this issue for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). But even if we consider the point, it is without merit.
First, we reject the State's argument that the judge "principally" relied on CSL as the reason for ordering L.M.R.'s release. That is a mischaracterization of his decision. This was a weak case for civil commitment, beginning with Dr. Vaughan's ambivalent evaluation while L.M.R. was still in prison. Therefore, it is not surprising that the State was unable to prove its case by clear and convincing evidence. See In Re Commitment of W.Z., 173 N.J. 109, 133 (2002).
Further, a sexually violent predator is one who "suffers from a mental abnormality or personality disorder that makes the person [highly] 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 (emphasis added); W.Z., supra, 173 N.J. at 133-34. Nothing in that definition suggests that a judge cannot consider a sex offender's entire situation in determining whether he needs to be confined in the STU or can be released following an initial commitment hearing. In fact, the State's reply brief concedes that "external factors like CSL may be considered by experts among the many factors examined in determining whether an offender is capable of controlling his sexually violent behaviors." We conclude that is what happened in this case. On this record, we find no error in the judge considering CSL as one of an array of factors bearing on whether L.M.R. can live in the community without being highly likely to commit additional sexual offenses.
As L.M.R. himself acknowledged to Dr. Stewart, it is very important that he refrain from drugs and alcohol when released, because those are dis-inhibitors that may make him more likely to relapse into offending. The parole supervision available through CSL is one mechanism to require regular drug testing, as well as outpatient sex offender therapy. CSL also allows the State to place appropriate limitations on where L.M.R. lives and works. And it is a particularly powerful form of supervision because failure to comply may result in L.M.R.'s arrest and incarceration. See N.J.S.A. 2C:43-6.4d. Moreover, as we were advised at oral argument, the same parole officers supervise offenders paroled on CSL and persons released from the STU on conditional discharge. We find nothing inappropriate in Judge Mulvihill, having found that L.M.R. was not highly likely to re-offend, nonetheless making some sensible recommendations as to the conditions of his parole supervision.
Violation of CSL is a fourth-degree offense for which the usual presumption against imprisonment does not apply. N.J.S.A. 2C:43-6.4d. And, because the applicable base prison term, for purposes of a CSL parole violation, is deemed to be life imprisonment, there is no outer limit on the number of times a sex offender on CSL can be incarcerated for CSL violations. See N.J.S.A. 2C:43-6.4b; N.J.S.A. 30:4-123.65. Thus, the State has extremely broad supervisory powers, and enormous leverage, over a sex offender convicted under Megan's Law and sentenced to a term that includes CSL.
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Accordingly, we vacate the stay previously entered in this matter, and order that L.M.R. be released from the STU no later than ten days after the date of this opinion. We extend the stay for that limited period to (a) permit L.M.R.'s assigned parole officer to meet with L.M.R. at the STU prior to his release, should the officer choose to do so; and (b) permit the orderly disposition of a stay application to the Supreme Court, should the State decide to promptly file such a motion. We do not, however, recommend that any further stay be granted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION