Opinion
DOCKET NO. A-6182-11T2
05-19-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF B.W., SVP-568-10.
Andrew Mark Ferencevych argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong and Mr. Ferencevych, on the brief). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 568-10. Andrew Mark Ferencevych argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong and Mr. Ferencevych, on the brief). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief). PER CURIAM
Appellant B.W. appeals from a June 29, 2012 judgment committing him under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, to the Department of Correction's Special Treatment Unit (STU). He presents two arguments for our consideration: the State failed to establish by clear and convincing evidence B.W. suffers from a mental condition or disorder that renders him likely to commit a sexually violent act if released; and the trial court improperly rejected B.W.'s conditional discharge plan. We reject these arguments and affirm the judgment.
The SVPA authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-27.28. 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 statutory criteria: 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 individual 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 "'[m]ental 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.
Indisputably, the State established the first of the statutory criteria. The civil commitment hearing took place shortly after B.W. had completed concurrent seven-year prison terms, served at the Adult Treatment and Diagnostic Center (ADTC), for two violent sexual offenses.
The first offense occurred in November 2003. B.W., then nineteen years old, went to a friend's house, intending to have sex with her. As he would later tell a psychiatrist: "I wanted to have sex with her . . . I needed to." B.W. telephoned the victim, age eighteen, at approximately 10:00 p.m. and asked if he could stop by to talk. They had been friends for a while, so she agreed. B.W. went to the house and after several hours "came up with a bike story" to accomplish his plan to rape her. He talked the victim into accompanying him to retrieve a mini-bike he said he had stolen and hidden in the woods.
While B.W. pretended to look for the bike, the victim said she wanted to leave. B.W. asked for a hug; she obliged. While hugging her, B.W. placed a knife against her neck, telling her to lay on the ground. She refused and he tripped her. He raped her. After finishing, he repeatedly asked: "Why did I do this?" He then handed the knife to the victim, asking her not to contact the police or he would kill himself.
The victim immediately went to the police and reported the assault. B.W. was arrested and charged with multiple offenses. While in jail waiting for his trial to be scheduled, B.W. convinced his father he was innocent and his father posted bail. While free on bail, B.W. committed another violent sexual offense.
The second offense occurred in August 2004 after B.W. called his girlfriend, who was unavailable. He felt rejected and began to think about other women with whom he could have sex. He decided to contact a young woman, age twenty, because he believed she would consent to sexual intercourse. He went to the victim's home with alcohol, telling her that he needed a place to stay because his parents had kicked him out. She agreed to let B.W. sleep on the couch. When she went upstairs with her seventeen-month-old son, B.W. retrieved a kitchen knife and went upstairs.
B.W. forced the victim onto her bed, holding the knife to her neck. He permitted her to put her son in his crib before returning to her bed, where he raped her. During the assault, she cried hysterically, repeatedly telling him "no." Afterwards, B.W. forced the victim to shower. He then handed her the knife, asking her to slit his throat and "to make it look like self-defense." He also begged her not to contact the police. B.W. left and was later arrested and charged with first-degree aggravated sexual assault.
As noted, defendant's commission of these offenses satisfied the first of the three civil commitment criteria under the SVPA. To prove the second and third elements — B.W. suffered from a mental abnormality or personality disorder, as a result of which it was highly likely he would reoffend — the State presented two expert witnesses: psychologist Jamie R. Canataro, Psy.D., and psychiatrist Pogos H. Voskanian, M.D. To refute the State's evidence, B.W. presented the testimony of one expert witness, psychologist Christopher P. Lorah, Ph.D. B.W. also presented the testimony of his father, and B.W. testified on his own behalf.
Dr. Canataro interviewed B.W. twice, for a total time of approximately three hours and fifteen minutes. She also relied on extensive records, including B.W.'s criminal history predating the two sexual assaults. Her report was admitted into evidence. Dr. Canataro diagnosed B.W. with: Paraphilia NOS (non-consent); Sexual Sadism, provisional; Polysubstance Dependence (in a controlled environment); Depressive Disorder NOS, by history; Posttraumatic Stress Disorder (PTSD), by history; Attention-Deficit/Hyperactivity Disorder (ADHD); and Antisocial Personality Disorder (ASPD) with borderline personality traits.
According to Dr. Canataro, B.W. "experiences recurrent and intense fantasies, urges, or behavior to nonconsensual sex. [B.W.] reports an arousal to rape. His offending history also demonstrates the behaviors necessary for [the] diagnosis" of Paraphilia NOS Non-Consent. B.W. had developed a sophisticated modus operandi (MO) which "involves isolating his victims and utilizing weapons to guarantee compliance in his sexual assaults." The doctor found B.W. had continued to escalate his offenses; specifically, B.W. began using weapons. These offenses required both planning and forethought. Dr. Canataro testified "[t]he most basic reason" she diagnosed B.W. with Paraphilia NOS Non-Consent is because "he reports an arousal to rape. He has overt behaviors to support this arousal. He has the two sexual offenses where his victims clearly were non-consenting and he was able to maintain his arousal during the offense." Additionally, B.W. "reports engaging in fantasies about his behaviors years after the incident, where he's reinforcing the deviant arousal towards rape." According to Dr. Canataro, this condition will not go away because
arousal patterns tend to remain constant throughout the life span. So, this is not something that will just go away automatically. What . . . we do recommend for these arousal patterns is that individuals attend treatment and they learn behavioral techniques in order to control acting out on these . . . arousals.
With regard to the diagnosis of Sexual Sadism, Dr. Canataro found B.W. "derives sexual excitement from the psychological and/or physical suffering . . . of his victims." The doctor explained the diagnosis was provisional because "there is evidence there to suggest a possible diagnosis," but the doctor "did not feel comfortable with a full diagnosis of Sexual Sadism." The evidence supporting this diagnosis included: B.W.'s "acts above and beyond just acts in order to complete a rape. There are additional components to the psychological suffering that his victims had to endure."
Concerning ADHD, Dr. Canataro acknowledged ADHD does not predispose B.W. to sexual violence, but opined, "a return of his mental instability could increase his risk of acting on criminal sexual impulses due to poor impulse control and decision making."
The doctor diagnosed ASPD on the basis B.W. "demonstrates a pervasive pattern of disregarding and violating the rights of others." This was evidenced by B.W.'s history of attempts to avoid punishment, his pattern of unstable relationships, and his desperate efforts to avoid abandonment.
Dr. Canataro disagreed with B.W.'s expert, Dr. Lorah, who opined B.W. acted out solely due to Polysubstance Dependence. Dr. Cantaro explained the basis for her disagreement: "an individual can have difficulty controlling behavior when they are intoxicated. But, an individual has to have these tendencies to begin with, in order to act out on them."
Dr. Canataro's STATIC-99R score for B.W. was an eight, putting him in the high risk category to reoffend.3 This placed B.W. in the 98th or 99th percentile, meaning he is a high risk to commit another sexual offense. Dr. Canataro explained that B.W. "is similar to a group of individuals that have sexually reoffended at a rate of [thirty-five] percent in five years and [forty-six] percent in ten years." Not factored into the score, but nonetheless of concern, was B.W.'s "failure under supervision" and his inability "to remain compliant with parole provisions placed upon him and he may be unamenable to this supervisions as a deterrent."
"The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., supra, 217 N.J. at 164 n.9 (citing Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). The Supreme 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.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). --------
Dr. Canataro further explained B.W.'s combination of Paraphilia NOS Non-Consent Disorder, ASPD, and Sexual Sadism "may serve to increase the probability that he would sexually act out. So, he may not feel constrained by law, by conscience, or empathy, and he may sexually act out on these urges."
The State's other expert, Dr. Voskanian, interviewed B.W. four times, totaling between three and four hours. In his report, which was admitted into evidence, Dr. Voskanian diagnosed B.W. with: Paraphilia NOS; Sexual Sadism; Polysubstance Dependence in Controlled Environment; ASPD; Depression by history; and PTSD by history. Although he conducted his own interviews, Dr. Voskanian's findings largely mirrored those of Dr. Canataro. For example, he diagnosed B.W. with Paraphilia NOS because B.W. had a "history of . . . behaviors and fantasies over a period of time." He explained this would not go away without treatment "because the pattern is established." As another example, Dr. Voskanian diagnosed B.W. with ASPD because of B.W.'s "impulsivity," "grandiose self-perception," "disregard for others," "multiple violations of supervision," "disregard for the law" and "manipulative behaviors."
Like Dr. Canataro, Dr. Voskanian disagreed with Dr. Lorah that substance abuse was B.W.'s only problem. Dr. Voskanian found that B.W. had not made progress in treatment for his behavior or substance abuse problems. Therefore, Dr. Voskanian concluded B.W. should be civilly committed under the SVPA because he has the requisite mental disorders and given his history and lack of treatment, his risk of re-offense is high.
B.W.'s expert psychologist, Dr. Lorah, testified that he did not "believe, with a reasonable degree of psychological certainty, that [B.W.] suffers from a mental health abnormality or personality disorder that predisposes him cognitively, volitionally or emotionally to commit acts of sexual violence in the near future." Further, he did not "think that [B.W.] is at a significantly increased risk for non-sexual crimes if he abstains from drugs and alcohol."
Dr. Lorah diagnosed B.W. with Polysubstance Dependence, PTSD, and Depressive Disorder by History. The doctor found B.W.'s STATIC-99R score to be 7, indicating a high risk to reoffend. Dr. Lorah suggested, among other things, that B.W. be conditionally discharged, whereby he would have to complete a residential placement then a placement at his parent's home.
The doctor believed B.W. should undergo weekly urine analysis because drugs and alcohol were inexorably linked to his sexual violence. Dr. Lorah testified that should the court disagree with him, the court should order B.W. to undergo a deviant arousal polygraph. He explained: "I think that completion of a deviant arousal polygraph is . . . paramount to this case. . . . I propose [B.W.] does not suffer from a paraphilic condition involving rape. And if he's given this . . . deviant arousal polygraph and successfully completes it I think that would add significant credence to my . . . opinion."
B.W.'s father testified he hired an attorney, who in turn hired a private investigator. Based on their findings, B.W.'s father bailed B.W. out of jail after the first rape. After B.W. raped a second victim while he was on bail, his father felt he had done all that he was able to do to help B.W. After B.W.'s eight years of incarceration, the father felt B.W. was once again his son. They now interact on a regular basis. The father said his son had demonstrated awareness of the importance in continuing to work on his faults. B.W.'s father is "absolutely" standing behind B.W. in an effort to gain his release. This support includes allowing B.W. to live in his home, under his supervision, if released. B.W.'s father testified he would have no hesitation reporting B.W. to his parole officer if he returned to drugs or alcohol or once again broke the law.
B.W. mostly testified about being sexually assaulted at the ADTC and how the assault affected him. Before being assaulted, he was attending therapy, but "not really internalizing the therapy there." After the assault he gained a new found respect for the level of support he was receiving and the services he was provided. One negative result of the assault, however, was he no longer felt safe while he was sleeping at night, so he began to sleep during the day, forcing him to miss treatment.
B.W. also discussed his two crimes. He recalled that during this period he was using marijuana, alcohol, and "various narcotic pills." Beginning at age sixteen or seventeen, his alcohol and marijuana usage had become "habitual." He was using alcohol four or five times each month. His substance abuse progressed until age nineteen when he would drink a liter of vodka daily and supplement it with beer. B.W. acknowledged he has a problem with a need for instant gratification, which he needs to treat and keep in check. He testified he did not "like the spirituality aspect" of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA), but would go. B.W. recognized that "addressing substance abuse is a lifelong commitment" and if released from the STU, "the only option open to [him]" would be to live with his parents.
Judge Philip M. Freedman recognized the "substantial difference of opinion" concerning B.W.'s treatment progress. The judge stated:
If there were in fact an inpatient drug program that would take [B.W.] — I'm talking about a [twelve] to [twenty-four] month inpatient drug program—that would take [B.W.] from the STU I would strongly consider making a conditional discharge to that program on the condition he not leave the program at . . . any time. And that when he complete the program . . . he be returned to the STU for reevaluation.However, no such facility was available despite Judge Freedman and counsel searching. Judge Freedman rejected Dr. Lorah's position that B.W. does not suffer from a mental abnormality except for substance abuse. Rather, he found "that both Dr. Canataro, in particular, and Dr. Voskanian clearly articulated substantial reasons to justify the diagnoses that they have made." Thus, Judge Freedman was "satisfied to find, by clear and convincing evidence, that . . . [B.W.] does suffer from a mental abnormality in the form of a paraphilia and a personality disorder, in the form of Antisocial Personality Disorder, as well as polysubstance dependence and other problems as indicated in the testimony." Judge Freedman also agreed with Dr. Canataro in that "drugs and alcohol were predominant in [B.W.'s] behavior[, but] they don't explain it."
Judge Freedman concluded that B.W.'s mental abnormalities "clearly dispose him to engage in acts of sexual violence as his record shows." This risk would be exacerbated by substance use and "if he [were] released, there is no question in [the judge's] mind, well beyond clear and convincing evidence that he would have serious difficulty staying away from drugs and alcohol." If he were using drugs and/or alcohol, "he would certainly be in trouble immediately thereafter, and certainly within the reasonably foreseeable future, and that trouble would include sexual offending." Therefore, Judge Freedman was "satisfied that [B.W.] needs to be committed and that the State has met its burden by clear and convincing evidence."
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, "an 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, the record reveals no mistake, let alone a clear mistake. Judge Freedman's findings are amply supported by sufficient credible evidence in the record. B.W.'s first argument — the State failed to demonstrate B.W. currently suffers from a mental condition which renders him highly likely to reoffend if released — amounts to a disagreement with the judge's credibility determinations concerning the experts.
B.W. committed two sexually violent offenses. He raped two victims at knifepoint and pled guilty to second-degree sexual assault and first-degree aggravated sexual assault respectively. He does not dispute he committed these crimes.
The State also proved, clearly and convincingly, B.W. suffered from mental abnormalities, and as a result, it was highly likely he would not control his sexually violent behavior if released, but would instead reoffend. Judge Freedman not only found Dr. Canataro and Dr. Voskanian credible in their diagnoses of B.W.'s mental abnormalities, but also explained why he rejected Dr. Lorah's conclusion that alcohol and drugs were B.W.'s sole problem. The testimony of Dr. Canataro and Dr. Voskanian fully supported the judge's factual determinations and legal conclusions; consequently, there is no reason to disturb them. R.F., supra, 217 N.J. at 174.
In his second argument, B.W. asserts his conditional discharge plan was improperly rejected by Judge Freedman. The argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION