Opinion
DOCKET NO. A-2692-11T2
05-09-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF F.V., SVP-589-10.
Joseph E. Krakora, Public Defender, attorney for F.V. (Maritza Rodriguez, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-589-10.
Joseph E. Krakora, Public Defender, attorney for F.V. (Maritza Rodriguez, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief). PER CURIAM
F.V. appeals from a December 12, 2011 judgment of the Law Division ordering his initial involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
F.V. is currently forty five years of age. The predicate offense underlying his civil commitment occurred on June 15, 1996, when he sexually assaulted his girlfriend's seven-year-old niece, A.M. During the course of the prosecutor's investigation, A.M. reported a pattern of sexual molestation that endured between six months and two years, during which time F.V. would bring A.M. to the basement and place her on top of the washing machine or a wooden work bench, then attempt to have her perform fellatio on him, perform cunnilingus on her, and touch her vagina with his hands and penis.
Eventually, on May 9, 2000, defendant pled guilty to first-degree aggravated sexual assault of A.M. He was sentenced to a twenty-year term of imprisonment, with a ten-year period of parole ineligibility.
The predicate crime to which defendant pled guilty occurred shortly after his entry of another guilty plea on May 10, 1996, this time to fourth-degree criminal sexual contact and third-degree terroristic threats. The underlying incident occurred on December 8, 1993, when defendant sexually assaulted an adult female acquaintance. When the victim resisted his attempts at fellatio and vaginal and anal penetration, F.V. threatened to kill the victim and her two-year-old daughter if she reported the attack. For these crimes, defendant was sentenced on August 7, 1998 to a five-year probationary term.
In addition to his sexual offenses, defendant has a history of anti-social behavior resulting in arrests, charges and convictions for drug and theft-related crimes.
Before the completion of his sentence on the predicate crime, on October 19, 2010, the State applied for his commitment to the STU pursuant to the SVPA. At the hearing, the State presented the expert testimony of Dr. Alberto Goldwaser, a psychiatrist, and Dr. Doreen Stanzione, a psychologist. F.V. presented the expert testimony of Dr. Barry Zakireh, a psychologist.
Based on his examination of F.V. on May 3, 2011, as well as information sources customarily relied upon in performing risk assessments, and the diagnostic impressions of other experts, Dr. Goldwaser diagnosed F.V. with Paraphilia NOS, Polysubstance Abuse with institutional remission, and Anti-Social Personality Disorder. According to Dr. Goldwaser, F.V.'s Paraphilia NOS was indicated by his "intense sexual urges that he cannot control[,]" as demonstrated by his threats of force, use of force, and "multiple acts" on each victim. Indeed, F.V.'s lack of control was strongly evidenced by his arrest for molesting A.M. occurring about a month after pleading guilty to sexually assaulting his first victim. And in the expert's opinion, F.V. is likely to reoffend: "This is an individual that, again, he's not taking responsibility for these behaviors, denies all of them, or moves them to be insignificant, does not have empathy for his victims, and does not have skills to prevent reoffending. This condition would -- highly condition him to reoffend sexually."
Dr. Stanzione diagnosed F.V. with non-exclusive Pedophilia, Polysubstance Abuse and Personality Disorder. Significant in her diagnosis of Pedophilia was the fact that at the time he sexually molested a seven-year-old child, F.V. had a sexually available and appropriate partner in his girlfriend. Moreover, Dr. Stanzione found a basis in the record to conclude that F.V.'s sexual assaults had endured for more than six months, a requirement for a diagnosis of Pedophilia. According to Dr. Stanzione, F.V.'s polysubstance abuse strongly exacerbates his risk of offending. Moreover, F.V. "lacks the tools" to avoid reoffending as he now denies ever assaulting either victim and was unwilling or unable to develop a plan for not reoffending in the future. Consequently, Dr. Stanzione opined that F.V. has a "serious difficulty controlling his sexual offending behavior[,]" and is at a high risk to reoffend.
On the other hand, F.V.'s expert, Dr. Zakireh, based in part on a Static-2002R actuarial assessment, found that F.V. presented only a "moderate" risk of reoffending. Dr. Zakireh also found F.V. "does have a mental abnormality in terms of the Personality Disorder with Antisocial features that could predispose him." In this regard, Dr. Zakireh acknowledged that F.V. has "difficulty controlling behavioral impulses" and conceded that a diagnosis of only Personality Disorder NOS with antisocial features can predispose a person to commit sexual offenses, i.e., it is not necessary for an individual to be diagnosed with an expressly sexual disorder to establish a predisposition for sexual offending.
At the close of evidence, Judge Philip Freedman ordered F.V.'s involuntary commitment. In so deciding, the judge credited the testimony of Drs. Goldwaser and Stanzione that F.V. is a high risk to engage in sexually violent behavior in the reasonably foreseeable future, and that F.V. lacks the tools necessary to prevent reoffending. The judge also accepted Dr. Stanzione's diagnosis of Pedophilia, concluding that, in light of the timeline of abuse reported by A.M. and F.V.'s own admissions, there was "more than [a] sufficient basis for Dr. Stanzione to find that [F.V.'s molestation of A.M.] lasted more than six months[,]" thus satisfying the diagnostic criteria for Pedophilia. Consequently, Judge Freedman found "by clear and convincing evidence" that:
Although F.V. now complains that the court erred in relying on A.M.'s hearsay statements, the transcripts of interviews with A.M. on June 16, 1996 and March 19, 1997, were admitted into evidence without objection. In any event, such evidence may properly be relied on by an expert, in forming the basis of his or her opinion. In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); see also N.J.R.E. 703.
[F.V.] suffers from a mental abnormality in the form of pedophilia and a personality disorder in the form of antisocial traits, personality disorder NOS, antisocial traits, as well as substance abuse problems on Axis I, and that these individually, and particularly in combination, predispose him to engage in . . . acts of sexual violence, as his record shows.This appeal follows.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-34 (emphasis added); see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in In re Commitment of W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.
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In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow[,]" and the trial court's decision should 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) (citing 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). "The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of December 12, 2011.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION