Opinion
DOCKET NO. A-4184-13T2
12-24-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.M., SVP-263-02.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant C.R.M. (Joseph E. Krakora, Public Defender, attorney). John F. Regina, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-263-02. Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant C.R.M. (Joseph E. Krakora, Public Defender, attorney). John F. Regina, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
C.R.M., who is presently confined to the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, appeals the trial court's judgment entered on February 25, 2014, ordering his continued commitment at the STU. Relying largely on the State's unrebutted expert testimony, the trial court found that appellant continues to be a sexually violent predator in need of involuntary commitment. We affirm.
On May 23, 1994, C.R.M. pled guilty to three counts of first-degree aggravated sexual assault involving multiple deviant sex acts upon three of his daughters. He was sentenced to an aggregate fifteen-year term, which was served in the Adult Diagnostic Treatment Center (ADTC) upon determination that his sexually deviant conduct was "repetitive and compulsive."
C.R.M. served approximately eight years of that term before being evaluated by psychiatrists, appearing before the court, and ultimately committed to the STU on July 7, 2003. C.R.M. appealed the trial court's July 2003 decision, which we affirmed. In re Civil Commitment of C.R.M., No. A-6775-02 (App. Div. March 23, 2006) (C.R.M. I).
In each of the next three subsequent reviews, C.R.M.'s continued civil commitment was ordered. Judgments entered on October 6, 2006, February 7, 2008, and October 13, 2011 were affirmed on appeal. In re Civil Commitment of C.R.M., No. A-1529-06 (App. Div. June 20, 2007) (C.R.M. II), certif. denied, 192 N.J. 595 (2007); In the Matter of the Civil Commitment of C.R.M., No. A-3348-07 (App. Div. Dec. 17, 2008) (C.R.M. III), certif. denied, 199 N.J. 132 (2009); In the Matter of the Civil Commitment of C.R.M., No. A-1460-11 (App. Div. May 16, 2012) (C.R.M. IV).
C.R.M.'s most recent review hearing began on January 7, 2013, and continued on January 28 and February 7, 2014. The State presented expert testimony from Dr. Dean DeCrisce, a psychiatrist. Dr. DeCrisce interviewed C.R.M., reviewed C.R.M's psychiatric history, and compiled a report of his findings and diagnosis. Dr. DeCrisce found that C.R.M. readily admitted to abusing two of his daughters during a time when he was on trial for sexually abusing one of his other daughters. The doctor found this suggests "that he was fairly bold about his offending" and "wasn't dissuaded by the fact that he had fairly serious criminal litigation going on against him." The doctor also found this probative of C.R.M.'s level of compulsivity and the strength of his deviance.
Dr. DeCrisce opined that C.R.M. minimizes both his sexual offenses and substance abuse. C.R.M. denies abusing his daughters until their teen years, because he is aware that sexual abuse of young children is less socially acceptable. According to Dr. DeCrisce, C.R.M.'s factual denial has wholly prevented any treatment for his pedophilia.
The doctor further found that C.R.M. "ha[s] a number of distorted thoughts about what substance abuse is," which is significant because it is "a known major contributor to sexual re-offense . . . [which] leads to disinhibition, and arguably perhaps even increases arousal[.]" Dr. DeCrisce opined that C.R.M. has received inadequate substance abuse treatment to mitigate his risk of re-offense.
Dr. DeCrisce noted that C.R.M. has been in sex offender treatment for nearly twenty years, and still refuses to complete the basic written requirements of treatment like his autobiography, sexual history questionnaire, and personal maintenance contract, nor will C.R.M. join the STU therapeutic community or submit to basic treatment polygraphs. According to Dr. DeCrisce, C.R.M.'s resistance to treatment is a product of his antisocial personality disorder. He further noted that C.R.M. has never fared well in treatment, either at ADTC or the STU.
Dr. DeCrisce diagnosed C.R.M. with: (1) pedophilia based on his violent sexual abuse of three young girls over a period of many years; (2) antisocial personality disorder based on his repeated behaviors that are grounds for arrest, disregard for the welfare of others, impulsivity, justification, blame of others, and repeated lying; and (3) cocaine dependence based on C.R.M.'s self-reporting and criminal history of alcohol and narcotics offenses.
Ultimately, Dr. DeCrisce found that C.R.M. is "highly likely" to re-offend because of his (1) bold sexual deviancy despite ongoing criminal investigations, (2) relatively poor community functioning, (3) poor relationship history, (4) minimal work history, (5) undesirable military discharge, (6) "minimal treatment effect over many, many years," (7) substance abuse history, (8) inability to comply with authority, and most importantly, (9) refusal to participate in treatment components "that he feels are not necessary."
The State also relied on the testimony of Dr. Nicole Paolillo, a psychologist and a member of the Treatment Progress Review Committee (TPRC) that evaluates C.R.M. annually. Dr. Paolillo has reviewed C.R.M. at least four times, most recently on March 15, 2013.
Dr. Paolillo first discussed allowing C.R.M. to remain at Phase Three of STU treatment—where he has been since 2006—despite recent drops in his participation based on three mitigating factors: (1) his age (sixty at the time of the hearing); (2) treatment exposure over many years; and (3) sexual offending dynamics consisting of primarily incest offenses of known, related victims. Dr. Paolillo would consider Phase Four and eventual discharge from the STU, if C.R.M. enters the therapeutic community and demonstrates a higher level of compliance with treatment directives.
Dr. Paolillo noted that C.R.M.'s sexual deviance is "ego-syntonic," meaning he is not bothered by the fact that he is aroused by young children, which makes treatment harder. She further found that his inclusion of multiple daughters in the same sexual experiences, use of weapons, threats to separate the girls, and other psychological abuse is "intertwined" with his arousal, suggesting a higher than typical level of sexual deviance. Dr. Paolillo was concerned that C.R.M. has not examined his pedophilia "at all" in treatment, and found it reflective of his general non-compliance and consequent lack of treatment effect. Indeed, C.R.M. had recently taken a sexual arousal polygraph, and deception was noted in all of his answers. Ultimately, Dr. Paolillo adopted the conclusions contained in her TPRC report, that C.R.M. is at "high risk" to sexually re-offend "considering [his] lack of treatment effect, sexual deviance, antisocial history and resistant personality structure." Dr. Paolillo recommended that C.R.M. complete his written assignments and submit to required polygraphs to move beyond Phase Three of treatment.
The three questions posed were: (1) in the past year have you masturbated to fantasies about your victims?; (2) in the past year have you masturbated to fantasies about teenage girls?; and (3) in the past year have you masturbated to fantasies about sexually forcing yourself on females?
Dr. Barry Zakireh, a psychologist, testified on behalf of C.R.M. Dr. Zakireh stated that C.R.M. "has been able to address the major issues . . . of his treatment," despite C.R.M.'s continued denial of abusing his daughters pre-puberty. He maintained that C.R.M. need not participate in all aspects of treatment at STU to lower his re-offense risk, and that he has received enough treatment to no longer be "highly likely" to re-offend.
Dr. Zakireh discussed C.R.M.'s treatment progress over twenty years and noted that C.R.M. was satisfactorily discharged from the ADTC, having completed modules relating to relapse prevention, accepting responsibility for his crimes, motivation to offend, and attitudes toward women. According to Dr. Zakireh, at the STU C.R.M. offers useful feedback to his peers, maintains good attendance, and has completed relapse prevention, arousal reconditioning, victim empathy, and anger management modules.
Dr. Zakireh found C.R.M.'s denial of pedophilic acts insignificant to assessing his risk of re-offending, stating that individuals who acknowledge their sexual offenses are equally likely to re-offend as those who deny them. He expressly stated that denial and minimization are not aggravating risk factors.
Dr. Zakireh stated that the Static 99R and 2002R actuarial tests are the best indicators of recidivism; C.R.M. scored zeros on both tests, placing him in the "low risk" category for re-offense. C.R.M. scored a two on these tests at the date of conviction, meaning that he was also in the actuarial "low risk" category on the day he admitted to raping his three daughters.
Dr. Zakireh diagnosed C.R.M. with unspecified paraphilia, based on C.R.M.'s statements that he only abused his three daughters after their pubescence. The doctor pointed to multi-generational sexual abuse in appellant's family as relevant to explaining C.R.M.'s incest behavior. Dr. Zakireh reported that he did not diagnose pedophilia because (1) the victims were interviewed multiple times, (2) the interviews were conducted years after the onset of abuse, (3) there were prior investigations by the Division of Youth and Family Services, (4) there may have been past abuse of these girls leading to memory problems, (5) vaginal intercourse at age four without serious specific injuries on the record is "unlikel[y]," and (6) there is no court testimony by the victims. Despite relying on the "incest defense," Dr. Zakireh conceded that C.R.M.'s victim pool is not limited to familial relations.
The trial judge ultimately rejected Dr. Zakireh's conclusion that C.R.M. did not sexually abuse his daughters pre-puberty.
Now known as the Division of Child Protection and Permanency.
This victim, R.R., specifically reported that they were not given medical treatment except when "sick."
C.R.M. was convicted by plea and there was no in-court testimony by the victims.
Ultimately, Dr. Zakireh found that C.R.M. is not at a high enough risk of re-offense to justify commitment, due to (1) his age, (2) his lengthy treatment, (3) his completion of relapse prevention modules, and (4) that his offenses are primarily incest offenses.
In the trial judge's oral opinion, he credited the State's experts and discredited Dr. Zakireh. He first found by clear and convincing evidence that the documentation relied upon by the three experts, including hearsay and polygraph reports, are the kind typically relied on in doing "these kinds of risk assessments." Based on that evidence, the judge found that C.R.M. "participates [in his STU treatment] to some degree, but continues to deny the offending." He noted that
[C.R.M.] does not appear to take any responsibility for his sex offending behavior, repeatedly blaming the victims, their mothers, society, his own upbringing and others. He continues to downplay the
severity of what he did to his victims, does not acknowledge the pain, physical or mental, that they have suffered. And in fact, numerous evaluators have considered the possibility of sexual sadism among [C.R.M.'s] diagnoses, and that he may, in fact, have enjoyed the pain-giving aspect of the abuse he inflicted on his victims.
The judge found that C.R.M. is not a reliable informant because "he keeps changing his stories . . . not only internally during the course of [one] interview . . . but there are a lot of discrepancies between [interviews]." The judge then noted that C.R.M. has admitted to arousal to incest, but "he hasn't done much work on this [incest issue] in group, and he continues to maintain that he only offended when [his daughters] were teenagers." The judge commented that C.R.M.'s version of events "doesn't add up or match the history or reality."
Instead, the trial judge found that C.R.M. is properly diagnosed with pedophilia based on clear and convincing record evidence of abusing his daughters pre-puberty, and on the opinion of the State's experts. He expressly discredited Dr. Zakireh's diagnosis, stating that Dr. Zakireh diagnosed paraphilia "based on C.R.M.'s self-report, without regard to the extensive record that shows [C.R.M.] is justified to have the diagnosis of pedophilia." The judge further discredited Dr. Zakireh's statement that the Static actuarial tests are the best—or even good—indicators of risk of re-offense, stating, "in my view you cannot rely on the Static-99. . . . The literature shows it's only moderately predictive."
The trial court stated that there is no issue as to whether C.R.M. suffers from a sufficient mental abnormality for continued commitment; even C.R.M.'s expert conceded this element. It expressly held that there is clear and convincing record evidence that C.R.M.'s pedophilia and antisocial personality disorder affect his emotional, cognitive, and volitional capacity in such a way as to predispose him to engage in acts of sexual violence. The judge noted C.R.M.'s "long history of highly-compulsive offending" as an "important indicator of future violent tendencies," and found that he struggles in particular with volitional control.
The court then found that C.R.M. "has not dealt with the issue of his pedophilia. He has refused to discuss the details of his offenses. . . . He has not reduced his risk by his treatment despite the long period of time." In so finding, the judge credited the testimony of Drs. DeCrisce and Paolillo. The judge concluded:
If you take into account what [C.R.M.] tends to do, which is extremely dangerous, it involved weapons and threats, physical and mental abuse along with the sexual abuse . . . his record shows that he clearly has a high likelihood of continuing [sexual abuse] again, there's no question in my mind that he continues to be a dangerous person if he
were released. He would have serious difficulty controlling his sexually violent behavior, and would in the reasonably foreseeable future engage in acts of sexual violence. He would somehow gain access to children for his — to satisfy his sexual deviance. And he has not yet dealt with it sufficiently to be able to control it to an extent that he could be released on a conditional discharge.
So, for all these reasons I'm satisfied that he needs to continue — his commitment needs to be continued. . . . [The TRPC has] been telling him for the last three or four years what he needs to do to reduce his risk, and his personality disorder is such that it just prevents him from doing it. And it's pretty clear to me that he would not be highly likely to comply with terms and conditions if they were put on him in the community. That by itself precludes a conditional discharge[.]
In light of this reasoning, the judge ordered that C.R.M. remain committed to the STU, and set a review hearing date for January 15, 2015.
At oral argument, C.R.M.'s counsel argued that the trial judge relied on inadmissible hearsay contained in the State's exhibits. In his opinion, the judge indicated that C.R.M. objected to the admission of four of the State's exhibits, P-2 (Dr. DeCrisce's report); P-4 (a TPRC report); P-5 (treatment notes from C.R.M.'s treatment plan status review); and P-6. Our review of the record indicates that the State only submitted five exhibits, P-1 through P-5, which were all admitted without objection. Moreover, even if appellant had preserved his objection to the State's exhibits at the trial level, the court based its decision primarily on the testimony of the doctors and we find no indication of any improper reliance on hearsay. See In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004) (expert opinions contained in earlier treatment records are admissible "not as substantive evidence but only as a basis for the [testifying] expert's opinion").
P-6 is not included in appellant's appendix and we find no mention of it in the record, other than in the judge's apparently mistaken reference to it as an exhibit objected to by C.R.M.
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The trial court's finding that C.R.M.'s high risk to re-offend requires his continued civil commitment for treatment, is supported by substantial, credible evidence in the record. See In re Civil Commitment of J.M.B., 197 N.J. 563, 597 (stating that appellate courts must defer where there is "substantial, credible evidence to support the court's findings"), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). Accordingly, we affirm the order continuing the involuntary civil commitment of C.R.M. to the STU.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION