Opinion
DOCKET NO. A-1626-13T2
06-04-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF A.M.B.S., SVP-12-99.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Victoria R. Ply, 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NOT FOR PUBLICATION WITHOUT THE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 Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-12-99.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Victoria R. Ply, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
This is the sixth time that A.M.B.S. (formerly known as A.E.P.) has appealed from a periodic decision by the trial court continuing his commitment to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. In his current appeal, A.M.B.S. contests an order dated August 1, 2013, in which the trial court concluded that he remains at high risk to reoffend if he were released. For the reasons that follow, we affirm that sound decision.
See In re Civil Commitment of A.M.B.S., No. A-1512-09 (App. Div. June 2, 2010); In re Civil Commitment of A.M.B.S., No. A-2007-08 (App. Div. June 22, 2009); In re Civil Commitment of A.M.B.S., No. A-2959-06 (App. Div. Apr. 27, 2007); In re Civil Commitment of A.E.P., No. A-6220-04 (App. Div. Apr. 10, 2006); In re Civil Commitment of A.E.P., No. A-5262-02 (App. Div. Feb. 15, 2005).
Appellant, who is now forty-four years old, has a long history of sexually deviant offenses and behavior. That history has been detailed at length in this court's prior unpublished opinions and need not be repeated here. See, e.g., A.M.B.S., supra, No. A-1512-09, slip. op. at 2. Appellant's predicate offense that led to his initial commitment to the STU in 2000 was his conviction of first-degree aggravated sexual assault of his girlfriend's three-year-old niece, a crime which he committed in December 1988.
At the instant August 1, 2013 hearing before Judge James F. Mulvihill, the State presented testimony from Alberto Goldwaser, M.D., an expert in the field of psychiatry, and Nicole Paolillo, Psy.D., an expert in the field of psychology. Appellant testified on his own behalf and also presented testimony from Christopher Lorah, Ph.D., an expert in the field of psychology.
Dr. Goldwaser evaluated appellant on July 25, 2013. Judge Mulvihill found "Dr. Goldwaser's testimony to be credible, from his interest, the demeanor, he's very knowledgeable about the case, and I find him to be a credible witness."
Dr. Goldwaser noted that during his evaluation, appellant appeared "visibly annoyed," and "definitive and angry in his response." The psychiatrist also noted that appellant was reluctant to provide him with "any information related to his offenses."
Dr. Goldwaser reviewed appellant's sexual history, and noted that it was significant in that it
show[ed] that there [were] very strong impulsive problems. . . . [T]here is a great deal of impulsivity, violence. And in terms of his sexual offense, it's preceded by a very long time of arousing fantasies and plans to assault children that age. And also to maintain relationship[s] with very young females.The psychiatrist explained that it was significant that appellant committed the sexual offense upon his girlfriend's three-year-old niece at a time when he was on probation stemming from a prior armed robbery incident. According to Dr. Goldwaser, this timing showed that
[appellant] was not afraid of the law. He was not . . . able [to] restrain [himself] facing supervision, facing charges. It happened also with the non-sexual offenses, the terroristic threat, criminal trespass three months later. While the case was still going on, he had this arrest for armed robbery and possession of a gun. That was three months after the first one. So,
clearly, he could not comply [with] legal behavior.
Dr. Goldwaser did acknowledge that appellant has made some progress, as compared to when he was first committed to the STU in 2000. As of that time, appellant was in complete denial about having committed his sexual crimes; but now, appellant does recognize that he victimized a child and forced her to perform sexual acts on and with him. Nevertheless, Dr. Goldwaser identified several important areas where appellant has not responded positively:
In terms of the treatment itself, he is — the — the sexual aspects specific of the treatment are he is not consistent with it and there is — there's evidence of that . . . in that he . . . did not pass most of the modules that have to do with learning about relapse prevention, arousal reconditioning, victim empathy. He is not able to work . . . on those aspects yet.
He still manifests, as he did throughout . . . uncontrolled temper[/]anger that . . . have impeded his ability to effectively engage in therapy. Last November of 2012, he — some of his distortions, one of them is . . . I'm quoting that in which he said "A crime is not a crime if one is not caught." And this is at the end of 2012.
. . . .
And the progress notes from different therapists all indicate that he is not able yet to address his cognitive distortions appropriately, not receptive to feedback, not able to demonstrate integration with modules. Most of them he did not
successfully complete, or those that were completed were asked to be repeated.
. . . .
So, the treatment is moving, but really very, very slowly.
The State's other testifying expert, Dr. Paolillo, is a psychologist who serves as one of the committee members within the STU's Treatment Progress Review Committee ("TPRC"). Judge Mulvihill similarly found Dr. Paolillo "to be a very credible witness, very forthright and very knowledgeable about the case."
Dr. Paolillo examined appellant on July 2, 2013. In her testimony at the subsequent review hearing, she gave a detailed and candid account of the extent of appellant's limited progress in treatment within recent years:
When you — when reviewing his chart, you'll see a great disparity between this year and his prior — maybe not enough of a disparity between this year and his last year to warrant the advancement, but over the past several years he has been gradually improving, he has been taking the floor, working on his written programmatics, attending modules, and having less outbursts.
. . . .
So, what we do see is, over the past few years, some in — in — improvement in his behavioral control, in that he's not been fighting, he's not been found with any inappropriate materials, such as pornography. And he's not been acting in a
manner that was — been impeding his ability to participate enough.
In the past year, his treatment team reported to me that he's demonstrating an internal motivation to gain insight into his offenses. This is new for [appellant]. He may have gained insight over the years, but it hasn't been in a manner that others can really appreciate. . . .
. . . .
What you will see throughout this good work are moments of anger, frustration, expressing difficulties working with women, some ongoing upsurgence of his poor frustration tolerance. It's not expected to go away. I do not expect [appellant] to become a calm, serene individual. He's likely to remain somewhat agitated and defensive for most of his lifetime.
When he had — when an individual is this severely frustrated and so easily set off and has such poor coping skills, it's not likely that he's going to change his entire personality. But, as we've encouraged him to do, it seems he's been able to manage them and — and keep them to a point that he's not being asked to leave group anymore, he is not — I did not terminate my interview with him, although I can get into that in a minute — and he is able to at least attend modules and be successful.
He's also more willing to comply. He's more willing to comply, in that he's taken so many floors. That's a level of compliance that we've asked him to cultivate over time. He is also willing to remain in group and at least subject himself to the process. And so, we do see improvements in that area.
Despite these observations indicating some progress, however, Dr. Paolillo expressed several important caveats:
The insight that he's obtained is not significant. It has not changed severely. He has been basically reporting that same account of his offenses since he has been here. There's not a great deal of change. He still reports that, when he assaulted [his former girlfriend's three-year-old niece], that he was under duress, that he at moments wanted to retaliate against the girl's mother. He has been inconsistent about exactly whether or not he penetrated her vagina or just merely forced her to perform fellatio. There hasn't been a great deal of movement in that regard.
And actually, denial is not a significantly — a significant factor related to recidivism and, in my perspective, he may never approve — improve significantly in that area, but the compliance for him is going to be significant, and the behavioral control is going to be more important, and I think have more influence over his risk.
As Dr. Paolillo explained, the three-person TPRC committee recommended that appellant be advanced to the next phase of treatment within the STU, Phase 3A. The psychologist explained that in Phase 3A, residents within the STU are
taking responsibility for their offenses, taking the floor, their participation in treatment will be — shall remain consistent, their demeanor will be appropriate and enthusiastic. Most importantly, they will be demonstrating an intrinsic motivation to participate in treatment, which has been reported by the treatment team in this case. So, the resident will be participating in treatment because [he] appreciate[s] the
importance and necessity of [his] own personal growth and addressing the treatment recommendations made by the TPRC and [his] treatment providers.
Appellant's own testifying expert witness, Dr. Lorah, was qualified by the court in the field of psychology. Judge Mulvihill found Dr. Lorah to be "credible, but disagree[d] with his diagnosis, disagree[d] with his opinion that [appellant] is still — is not highly likely [to reoffend] at this particular time." The judge added, "I don't find him [Dr. Lorah] to be — I don't agree with his opinions, although he was credible as to a lot of the questions that were asked, and that the fact that [appellant] was, in his opinion, in the past highly likely to sexually reoffend."
Dr. Lorah examined appellant on July 24, 2013. This examination included the use of empirical evidence to gauge appellant's risk of recidivism. Dr. Lorah's report detailed appellant's sexual and clinical histories. However, the doctor differed from Drs. Goldwaser and Paolillo in his clinical diagnoses of appellant, particularly of their diagnosis of pedophilia:
Child sexual abuse communicates the need for sexual offense therapy. It seems obvious to me that [appellant] should continue his treatment, his sex-offense specific treatment, but I don't attribute his behavior or his offending to a direct psychological cause or identifiable
psychological cause. In this case, pedophilic disorder would be considered.
. . . .
. . . [R]esearchers have made a distinction between a child molester and a pedophile. And pedophilia is primarily driven by the sexual attraction to children, whereas a child molester talks about — doesn't make any reference to covert states, such as urges or interests, but rather simply refers to overt completed acts of abuse.
The motivations can be very, very different between a child molester and a pedophile. The motivations of a pedophile are almost exclusively sexual in nature. The motivations of a child molester could be a person who is severely intoxicated, demented or trying to psychopath — psychopathically injure the child.
And I would propose that [appellant's] assertions that he was also feeling — wanted other people[] to feel his pain, that he was willing to hurt anyone in his way, and that his — his child victim was in his way, so to speak, communicates to me that he's not a pedophile, that he committed his act as a child molester, and we should not attribute that offense to an identifiable psychological condition.
. . . .
I would be much more inclined to say that [appellant] would be highly likely to commit a sexual offense if I felt that he met the diagnostic criteria for pedophilic disorder.
On the basis of his own observations and reasoning, Dr. Lorah concluded with the following recommendations:
Put simply, there was initially a certain degree of equivocation involving the appropriateness of [appellant's] civil commitment . . . . He has made minimal gains in treatment over the past ten years and there is no indication any additional time spent in therapy will decrease his risk for recidivism beyond what is typically seen with aging.
Based on empirically validated measures and other considerations, [appellant] does not appear to pose a "highly likely" threat for sexually violent behavior. There is a strong potential that his current treatment needs can adequately be met in the community. These needs include continued sex offense specific treatment in a less restrictive environment, substance abuse treatment, educational and vocational training as well as polygraph and objective measurement of his sexual arousal . . . . In terms of community supervision needs, [appellant] should receive at least weekly urinalysis, mandatory treatment participation, as well as meetings with supervising authorities and other stipulations commonly mandated for released sexual offenders.
If [appellant] should remain civilly committed, it is highly recommended that he complete an objective measure of his sexual interest. This will help confirm or deny his provisional diagnosis of [p]edophilia. As mentioned, it is unclear what else is needed to remove the "provisional" specifier in records. During the clinical interview of the current evaluation, [appellant] was able to articulate several things that could put him at risk for another sex offense. Specifically, [appellant] talked about his need to abstain from substances, to increase his socialization and communication and to avoid a "pretend normal" state as aspects of his relapse prevention plan. His treatment
and expectations should take into account [appellant's] reading, writing and general cognitive limitations.
Finally, appellant testified on his own behalf. He maintained that he did not commit the acts of vaginal and anal penetration on the three-year-old child, but instead explained, "All I did was had her go down on me, had her perform fellatio on me." Appellant also insisted that other discrepancies with his sexual offense history existed — first, that his sexual offenses in 1987, when he was seventeen, were perpetrated upon a thirteen-year-old, and not a twelve-year-old; and second, that the sexual offense against his sister was fabricated because "[his sister] lied and she had been charged with that, for lying to the police."
Judge Mulvihill issued an oral opinion from the bench at the conclusion of the August 1, 2013 hearing. In making his findings, Judge Mulvihill specifically disagreed with Dr. Lorah's finding that appellant did not appear to pose a "highly likely" threat for sexually violent behavior. Relying instead on Dr. Goldwaser's and Dr. Paolillo's analyses, the judge concluded:
I find that the [S]tate has proven by clear and convincing evidence: number one, that [appellant] has been convicted of a sexually violent offense; that he continues to suffer, by clear and convincing evidence, from a mental abnormality, a personality
disorder that does not spontaneously remit; I find, by clear and convincing evidence, a pedophilia, as well as antisocial personality disorder; that he's predisposed to sexual violence, by clear and convincing evidence; that he is clear — clear and convincing evidence that presently [appellant] is highly likely to sexually reoffend if not confined to the STU.
I find that he's made some progress in treatment, and that he may be at the lower end of highly likely, but he's still highly likely. He's still, by clear and convincing evidence, a threat to the health and safety of others, especially young children, because of the high likelihood of his engaging in violent acts.
It has been demonstrated by clear and convincing evidence that he will have serious difficulty controlling sexually harmful behavior.
He's had a whole history of [Modified Activity Program] placements, right through 2009. When he was incarcerated before he came to the STU, there were also some infractions, including violence.
But he is aging out somewhat and it — in the future, he could wind up being less than highly likely and conditionally discharged with a lot of conditions, but not right now. He is highly likely at this point to sexually reoffend, and I find that by clear and convincing evidence.
On appeal, appellant contends that he does not presently have a mental abnormality that currently makes him highly likely to commit another sexual offense. He argues that, now that he has reached the age of forty-four, he is less likely to have the sexual drive that he had as a younger man. In that same vein, he contends that the State's experts and the trial judge failed to take into account that his recently-measured Static 99 score statistically placed him at a low-to-moderate risk, and that "dynamic factors" are not present to elevate this risk. He therefore submits that the trial court's order of continuing commitment should be overturned. We disagree.
By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.
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 consists of "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. Such a mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).
The State must prove at the SVPA commitment hearing that the offender poses a threat:
to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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 "his or her 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 individual will reoffend. Id. at 132-33 (emphasis in original); see also R.F., supra, 217 N.J. at 173.
[W.Z., supra, 173 N.J.at 132.]
As the Supreme Court recently emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal 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 must 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)).
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 (internal citations omitted). "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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
Applying these deferential principles here, we affirm the order directing appellant's continued commitment, substantially for the reasons expressed by Judge Mulvihill in his oral opinion. Although appellant has made some progress within the institution, he by no means has resolved his sexual proclivities.
The trial judge found the assessments of the State's experts concerning appellant's continued risk of re-offense to be more credible than the more optimistic predictions of Dr. Lorah. The judge's comparative evaluation of the competing experts should not be disturbed. R.F., supra, 217 N.J. at 174. There is substantial credible evidence in the record that appellant, although he has exhibited some improvement and has grown older, remains a high risk to reoffend and should continue to be committed.
We also note that Dr. Lorah's analysis departs, at least in part, from the SVPA's statutory criteria. As we noted above, Dr. Lorah testified that "there is no indication [that] any additional time spent in the therapy will decrease his risk for recidivism beyond what is typically seen with aging." But the standard for release under the statute is not whether more therapy will improve the offender's condition. If that were so, then hypothetically a highly dangerous offender who is completely impervious to any form of treatment would, by Dr. Lorah's logic, be eligible for release. Instead, the proper key question under the statute is whether the offender remains a high risk to reoffend, regardless of the offender's susceptibility to treatment. N.J.S.A. 30:4-27.32.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION