Opinion
DOCKET NO. A-1603-14T2
04-14-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF S.A. SVP-553-10
Michael T. Denny, Assistant Deputy Public Defender, argued the cause for appellant S.A. (Joseph E. Krakora, Public Defender, attorney). Stephen Slocum, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso.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, SVP-553-10. Michael T. Denny, Assistant Deputy Public Defender, argued the cause for appellant S.A. (Joseph E. Krakora, Public Defender, attorney). Stephen Slocum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
Appellant S.A. is currently committed to the Department of Correction's Special Treatment Unit (STU) for sexually violent predators. Following an October 6, 2013 review hearing, the court entered a judgment continuing S.A.'s commitment at the STU and requiring that another review hearing be conducted on September 22, 2015. On this appeal, S.A. contends that the court erroneously relied on the testimony of evaluators who misinterpreted certain test results and that the State failed to prove by clear and convincing evidence that, if released, he is highly likely to commit more acts of sexual violence. We affirm the judgment.
The Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-28. Sexually violent predators include persons "who ha[ve] been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and suffer[] from a mental abnormality or personality disorder that makes [them] 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. Thus, to have a person committed under the SVPA, the State must prove by clear and convincing evidence three elements: the person has been convicted of a sexually violent offense; the person suffers from a mental abnormality or personality disorder; and, as a result of such mental abnormality or personality disorder, "'it is highly likely that the [person] will not control his or her sexually violent behavior and will reoffend.'" In re Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).
The term "sexually violent offense" refers to offenses enumerated in the SVPA, including aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, and "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26. The term "'mental abnormality' means 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 person who has been involuntarily committed under the SVPA is entitled to annual review hearings to determine whether he or she remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a). Here, following a review hearing, the judge determined that the State had met its burden of proving all three elements by clear and convincing evidence. We agree.
The record reveals that S.A., now twenty-eight years old, has a considerable criminal history. We recounted his criminal history - including his sexual assault of a four-year-old girl and his sexual assault of his sister - in a previous opinion affirming his commitment and we need not repeat that history here. In re Commitment of S.A., No. A-1619-13 (App. Div. May 28, 2014). S.A. does not dispute that he has committed sexually violent offenses. Rather, he disputes that at the most recent review hearing, the State clearly and convincingly proved he remains in need of commitment despite treatment.
The State presented two witnesses at defendant's review hearing: Howard Gilman, a psychiatrist, and Tarmeen Sahni, a member of the STU Treatment Progress Review Committee. Dr. Gilman diagnosed S.A. with these mental abnormalities: Hypersexuality; Antisocial Personality Disorder; Cannabis, Phencyclidine, and Alcohol Use Disorders; and ADHD by history. Dr. Sahni diagnosed S.A. with virtually the same disorders.
"Antisocial personality disorder is defined by 'a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.'" R.F., supra, 217 N.J. at 163 n.8 (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 701 (4th ed. Text Revision 2000) [DSM-IV]). The Court noted that the latest edition of the DSM was published in 2013. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). See id. at 162 n.6.
"'The essential feature of [ADHD] is a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequently displayed and more severe than is typically observed in individuals at a comparable level of development.'" R.F., supra, 217 N.J. at 163 n.7 (2014) (quoting DSM-IV).
Dr. Gilman explained that a person with both Hypersexuality and Antisocial Personality Disorder, who has a history of sexually offending, is at a higher risk of reoffending. The doctor further explained that these disorders do not spontaneously remit, and that S.A. had undergone insufficient treatment so as to be able to adequately control the impulses caused by these disorders. Dr. Gilman testified that S.A.'s mental disorders predisposed him to sexual violence and therefore, S.A. would have serious difficulty controlling his sexual offending behavior if released. The doctor characterized the risk of defendant reoffending if released as "high."
Dr. Gilman also testified that S.A. scored seven, a high score, on the Static-99R. The doctor explained that the Static-99R looks at a set of factors that are actuarially related to reoffending behavior, such as age and the nature of the offenses, number of arrests, victims, victim profiles and other anti-social or criminal behaviors as well as stability factors such as marriage. Scores of six and above are related to a high risk of a person sexually reoffending. In response to the judge's question, Dr. Gilman further explained that S.A.'s score did not apply to him individually, but rather indicated that S.A. was in a pool with a significantly higher risk of reoffending than individuals with lower scores.
"The Static-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris et al, Static-99 Coding Rules Revised-2003 5 (2003). This Court has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" R.F., supra, 217 N.J. at 164 n. 9 (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).
Lastly, Dr. Gilman noted that S.A. was only in Phase II of treatment, which is not the main phase. The main phase is Phase III. S.A. was essentially still in a pre-treatment phase.
Dr. Sahni's opinion was similar to that of Dr. Gilman. Based on S.A.'s diagnoses, psychological testing, including the Static-99R, and lack of significant progression while at the STU, the doctor believed S.A. was at a high risk to reoffend if released. The doctor was particularly concerned that S.A. had not been entirely candid about his sexual offense history and needed to do so in order to obtain maximum benefit from treatment.
Dr. Sahni explained that in Phase II of treatment, S.A. had completed module 1A of his Relapse Prevention (RP) program, but had taken a "repeat pass" on module RP-1B and a "fail" the second time he took this module. S.A. had been placed on a Modified Activities Program due to an altercation with another resident. Dr. Sahni was concerned that S.A. had been unable to learn anything from the consequences of the altercation. S.A. missed four groups during the review period and Dr. Sahni had some concern that S.A. was not maintaining motivation and treatment.
A Modified Activities Program (MAP) is a "component of the clinical treatment program at the STU that focuses on stabilizing disruptive or dangerous behaviors." M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr., 379 N.J. Super. 37, 45 (App. Div. 2005).
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Dr. Sahni also testified that S.A. had a very limited understanding of his deviant arousal and perhaps did not necessarily believe he has a deviant arousal. As of the date of the review hearing, S.A. had not developed a RP program. S.A. had continued to minimize his sexual offenses with the TPRC panel. Dr. Sahni explained that "[i]n order to fully advance the treatment . . . an individual needs to be more candid when they're presenting their sex offense history . . . along with their substance abuse history . . . ."
After recounting S.A.'s criminal history, pertinent data from treatment and interviews, and scores on various tests, including the Static-99, Dr. Sahni opined that S.A. had undergone insufficient treatment to reduce the high likelihood that he would reoffend if released. Consequently, S.A.'s risk of reoffending remained high.
S.A. testified on his own behalf, but called no experts. He explained that he was putting his "best foot forward" and trying to be open-minded in response to his treatment. After recounting the modules he had completed, he acknowledged that he still had a number of modules to complete. He also admitted in response to a cross-examination question that his deviant arousal was "[s]neakiness, trying to get away with everything, sex, selling drugs. That's about it."
Judge Philip M. Freedman found the doctors' testimony credible. Based on the expert testimony as well as his review of all documentary evidence, Judge Freedman found the State had proved by clear and convincing evidence "that if [S.A.] were released he would, in fact, have serious difficulty controlling his sexually violent behavior, and would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence." The judge further found that, if S.A. returned to drug abuse, his re-offending conduct would occur sooner than later; but, even in the absence of substance abuse, S.A. would re-offend "within the reasonably foreseeable future."
Because judges who hear SVPA cases are specialists with expertise in the subject, their decisions are entitled to special deference. R.F., supra, 217 N.J. at 174. In addition, the SVPA judges "'hear and see the witnesses and . . . have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). For those reasons, "[a]n appellate court should not modify a trial court'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).
Here, Judge Freedman's decision to continue S.A.'s commitment is clearly and convincingly supported by ample credible evidence in the record and the record does not reveal a clear mistake. Judge Freedman demonstrated a comprehensive knowledge of the limitations on the psychological testing referenced by the experts, including the Static-99R. The judge certainly was not misled in any way by the experts' testimony about the tests the experts used in reaching their conclusions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION