Opinion
DOCKET NO. A-1741-14T2
04-15-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF M.S., SVP-586-10.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Punam Alam, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-586-10. Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Punam Alam, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
M.S. appeals from a May 19, 2014 order, which continued his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
M.S. is fifty-five years old and has been committed to the STU for four years. His predicate offense, which we described in detail in our opinion affirming M.S.'s initial commitment, In re Civil Commitment of M.S., No. A-2295-10 (App. Div. Aug. 2, 2013), involved the kidnapping of two nineteen-year-old girls. M.S. had hidden in the backseat of their car. When the two got into the front seats, he drew a gun and ordered them to drive to a secluded location where he attempted to rape one of the girls. When he found himself incapable, he slit the young woman's throat and stabbed her repeatedly. The other had run for help. Both survived.
He pleaded guilty to first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; and third-degree possession of a knife for unlawful purposes, N.J.S.A. 2C:39-4(d), and was sentenced to an aggregate forty-year term of imprisonment with twenty years' parole ineligibility. While incarcerated, M.S. incurred fifty institutional infractions, including a conviction for aggravated assault on a corrections officer for which he received a concurrent ten-year sentence.
Prior to his scheduled release in September 2010, the State filed a petition for his civil commitment pursuant to the SVPA. M.S. was temporarily committed in September 2010, and the Superior Court entered an order finding M.S. to be a sexually violent predator in need of involuntary commitment on December 22, 2010. We subsequently affirmed that initial commitment order. M.S., supra, slip op. at 1.
A review hearing was scheduled for December 6, 2011, but because M.S. had filed a notice of appeal of the original commitment order, the hearing was postponed pending our decision on his appeal.
The review hearing at issue here was held on May 12, 2014. Judge Freedman heard testimony from Dr. Howard Gilman, a psychiatrist, and Dr. Christine Zavalis, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC). M.S. did not present an expert or testify in his own behalf.
Dr. Gilman diagnosed M.S. with antisocial personality disorder manifested through his sexual aggression and poor impulse control, and multiple substance dependence in institutional remission based on his use of alcohol, marijuana, cocaine and heroin beginning as early as age nine. Dr. Gilman characterized M.S.'s risk of reoffending if not recommitted as high based on several factors: his score of six on the Static-99R, an actuarial measure of relative risk for sexual offense recidivism, placing him at high risk to sexually reoffend; his history of offending; his having antisocial personality disorder; his substance dependence; his criminal history; and his failure to reach a state of treatment where the effect of treatment would sufficiently mitigate his risk of reoffending.
In drawing these conclusions, Dr. Gilman relied in part on M.S.'s history of sexual offenses. In addition to confirming the official account of his predicate offense, which Dr. Gilman found to have a significant sexual component, M.S. admitted in interviews at the STU that he had engaged in other troubling sexual behavior for which he was never indicted.
Dr. Gilman testified that M.S.'s history of sexual offenses began at an early age. When M.S. was in the fifth grade, he was charged with assault with intent to rape, contributing to the delinquency of a minor and resisting arrest. Dr. Gilman also referred to records obtained from M.S.'s middle school regarding an incident in 1972 in which M.S. demanded that another student perform an act of fellatio. A school psychological report further revealed that M.S.'s mother reported her son's unusual focus on sexual matters began as early as age four.
According to Dr. Gilman, M.S. was arrested for rape in 1978, though M.S. claimed that the alleged victim falsely accused him and later recanted her testimony. Later that same year, M.S. was charged with sodomy while serving time in county jail. He also had two institutional infractions at Rahway State Prison in 1983 for engaging in sexual acts with others and for making sexual proposals to another person.
Dr. Gilman explained that the fact that accusations began as early as age eleven or twelve "raises the issue of whether there's this unusual and very, very early focus on [M.S.'s] part on sexual matters that has carried . . . through his adult life." The doctor noted that while M.S. was not indicted for the previous charges, he nonetheless gave them "some weight" in his analysis because they seemed to create a pattern of "overactive" and "criminal" sexual activity. Dr. Gilman further opined that M.S.'s extensive non-sexual criminal background, including armed robbery and larceny was consistent with the diagnosis of antisocial personality disorder.
With regard to M.S.'s progress at the STU, Dr. Gilman testified that M.S. had received no disciplinary charges in prison after the year 2000 and had no disciplinary problems during his time at the STU. He has routinely engaged in treatment and recently entered Phase 3A of treatment, an early stage of the core phase of treatment. While Dr. Gilman considered this a positive step, he nevertheless deemed M.S. to be at a "high risk to sexually reoffend."
Dr. Zavalis testified the TPRC diagnosed M.S. with a provisional paraphilia NOS non-consent, based on his pattern of sexual offenses, poor impulse control, and previous admissions to being aroused by pain or violence; antisocial personality disorder due to his history of criminal behavior, aggression, lack of remorse, low frustration tolerance, poor decision-making, institutional infractions and juvenile problems; and polysubstance dependence because of his history of abusing alcohol, cannabis, cocaine, crack and heroin. Despite M.S.'s successful progression into Phase 3A, M.S. still exhibited some barriers to treatment. He consistently attended groups, assumed a leadership role within his process group, and related well to other members of the group but did not participate as much as he "could or perhaps should have." He also appeared "rigid" and "over-controlled" at times, indicating an unwillingness or inability to express and explore negative feelings and the concealment of rage.
Dr. Zavalis explained that M.S.'s understanding of relapse prevention concepts remained rudimentary and that he required more time to understand his offending behavior, explore his patterns and develop relapse prevention techniques. In addition to scoring a six on the Static-99R, M.S. received a score of 25.3 on the PCLR-R, placing him in the high range of the construct for psychopathy. The TPRC concluded that M.S. was highly likely to sexually reoffend if not recommitted to the STU for further treatment.
Following the experts' testimony, M.S.'s counsel argued that antisocial personality disorders tend to "burn out" in an individual's thirties or early forties. M.S., he asserted, likely experienced such a burnout in the form of decreased aggression and impulsivity because his last disciplinary problem occurred in 2000 when he was forty years old. M.S.'s counsel further pointed out that the actuarial risk of re-offense decreases in an individual's fifties and sixties. Thus, he argued, Dr. Zavalis's testimony that M.S. has been suppressing his anger may actually reflect the fact that M.S. has become less angry over time.
After hearing the testimony and the argument of counsel, Judge Freedman ordered M.S.'s continued commitment to the STU. The judge found credible the doctors' uncontroverted testimony and supporting treatment reports and determined that M.S. suffers from "a personality disorder and also mental abnormalities in terms of substance abuse." While the doctors did not agree on whether M.S. suffers from a paraphilia, the record and M.S.'s own admissions demonstrate that he is "clearly . . . predisposed . . . to engage in acts of sexual violence." Judge Freedman noted that M.S. has made progress in treatment but determined that he "has not yet gotten to the stage where his treatment has reduced his risk to a point where he can be considered for a conditional discharge." Considering the brutal nature of M.S.'s predicate offense, his history of charges for sexual offenses, and his "early onset of . . . sexual difficulties," Judge Freedman concluded that the State met its burden to show by clear and convincing evidence that M.S. is highly likely to reoffend.
M.S. appeals, renewing the arguments rejected by Judge Freedman.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings are required to determine whether, despite treatment, the individual remains in need of civil commitment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).
To warrant the continuation of commitment, the State must prove 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." W.Z., supra, 173 N.J. at 132; see also In re Commitment of J.M.B., 197 N.J. 563, 571, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The court must consider the individual's "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 person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
As the Supreme Court has recently reiterated, the scope of appellate review of a judgment for commitment under the SVPA is "extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014). The trial court's decision is to 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) (quoting 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). Thus, a trial court's findings will not be disturbed so long as they "are supported by 'sufficient credible evidence present in the record.'" R.F., supra, 217 N.J. at 175 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Applying those standards here, we are satisfied from our review of the record that Judge Freedman's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We reject M.S.'s argument that his advancing age has mitigated the effects of his antisocial personality disorder, thereby making it less than "highly likely" that he will reoffend. Although we acknowledge M.S. has made significant progress in therapy, he has offered no evidence to refute Dr. Gilman's and Dr. Zavalis's expert testimony that he is still in the early stages of treatment and has not yet developed a sophisticated understanding of his past pattern of behavior or a strategy to prevent re-offense.
We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of May 19, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION