Opinion
DOCKET NO. A-6039-11T2
05-06-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF J.G., SVP-364-04.
Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Nancy Ferro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Jeffrey Widmayer, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-364-04.
Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Nancy Ferro, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Jeffrey Widmayer, Deputy Attorney General, on the brief). PER CURIAM
J.G. appeals from the June 28, 2012 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
In 1992, J.G. pled guilty to two counts of first-degree aggravated sexual assault and was sentenced to a twenty-year prison term. In anticipation of his release, the State originally moved for civil commitment of J.G. under the SVPA in 2004, but learned that he was subject to a federal detainer for violation of his federal parole as the result of an armed robbery conviction. The State withdrew the petition and refiled after J.G.'s federal sentence term was completed.
J.G. was temporarily committed to the STU and an initial commitment hearing was held on June 14, 2012. The State called Dr. Dean DeCrisce, a psychiatrist who examined J.G. in 2010, 2011 and 2012. Dr. DeCrisce reviewed J.G.'s criminal history and described the three offenses which led to his arrest in 1991. J.G. met a woman on a bus and followed her when she got off. He put a knife to her side and forced her into a vacant apartment. With the knife to her throat, J.G. ordered the woman to take off her clothes. After telling the woman he was "Jack the Ripper" and threatening to kill her, J.G. then raped her vaginally and anally and forced her to fellate him. While he was raping her, J.G. continually stabbed the mattress next to the victim's head with his knife. J.G. then took the woman's pocketbook and fled. After Dr. DeCrisce read the details of this incident to J.G., he confirmed the accuracy of the report.
The second incident involved a planned rape of a woman who worked delivering flowers. J.G. ordered flowers delivered to the World Trade Center. When the woman arrived, J.G. told her he did not have the money to pay for them but if she would accompany him to Newark, he would pay her there. The victim accompanied J.G. back to Newark where he forced her at knifepoint into a building. The woman fought back and her hand was cut by the knife during the struggle. J.G. punched the woman in her eye and knocked her down. J.G. then told the woman to remove her jewelry and tried to remove her pants. Although J.G. removed his pants, the woman was able to escape before he could rape her.
One week later, J.G. committed the third sexual assault, which led to his apprehension. J.G. met a woman and took her name and address on a pretext. He arrived at the woman's house but she refused to let him in. He then punched her in the face twice and with a knife in his hand, forced her on to a bed where her three-year-old son was sleeping. J.G. ordered the woman to undress and threatened to kill her child if she refused. She complied and J.G. raped her on the same bed her child was sleeping in. J.G. then asked for the woman's money but she went to a window and screamed for help. J.G. fled and was apprehended.
In addition to these offenses, Dr. DeCrisce noted that J.G. had been involved in six to eight additional sexual offenses or attempts. DeCrisce found these incidents coupled with J.G.'s numerous other arrests, including a juvenile record beginning at age nine, attested to his psychopathy. He saw J.G. as "an extremely disturbed child [with] an extremely ingrained pattern of antisocial behaviors from an early, early age, despite repeated, repeated, repeated correctional attempts to intervene or punish . . . he's continued in that behavior."
Dr. DeCrisce diagnosed J.G. with paraphilia and when asked by the court to explain his diagnosis testified:
[J.G.] clearly has antisocial personality disorder. . . . [T]here's no -- no doubt about that. . . . [but] in [J.G.]'s case it does not appear that that adequately explains the behaviors. And the reason why I come to that conclusion is antisocial rapists, those who rape based on their antisocial personality disorder usually don't want to have a rape. They don't want to rape. They just want to have sex with the woman. They're not adverse to taking it by force, but they really just want to have sex with the woman. So they're rather she say yes. But if she doesn't say yes, they don't have any qualms about taking it if they have to.
So what they would try to do potentially is to try to court the person first. Hi, how are you? Come back to my place? And then if the woman says no, and they feel they're entitled to it, they'll just take it from the person. They'll take it from the woman, okay? Or they have an
exchange and feel, I bought the woman dinner, she owes me sex. If she's not going to give it to me, I'm going to take it. It's -- it's an exchange that -- that provides for some kind of entitlement.
[J.G.] does not have that exchange, at least in the three very described rapes that we have, and then all these other charges and some of which were convictions that we don't know anything about. But in those three clearly described rapes, they are planned, straight up planned rapes. No attempt to engage the woman in any way except to rape her, as if rape was the goal. And rape is always the goal -- rape -- rape is the goal when there is a rape paraphilia, when there is an abnormal sexual drive to -- to participate in deviant sexual activity.
So he clearly tries to plan rapes. He does it while he's under supervision. He -- he does it repeatedly. They're escalating; they're fairly severe. The victim impact is extremely high. Most antisocial rapists, in my opinion, would not repeatedly stab the mattress next to the woman's head and say he's going to cut their heart out. It's just the antisocial rapist uses the level of violence that they need to control the victim. They don't use violence way above and beyond anything you would need to do, because it just wouldn't be want turns them on. They don't want that. They're not interested in that. This appears that he was interested in the struggle. He wants the struggle. He wanted to rape. That's -- that's what it appears to be in my opinion. And to me that's evidence of -- of a paraphilia without -- without question.
Dr. DeCrisce also diagnosed J.G. with antisocial personality disorder, opiate dependence, cocaine dependence, and possible alcohol abuse and testified that the combination placed J.G. at a greater risk of sexual recidivism: "the paraphilia gives you the -- the abnormal sexual drive, and the -- the antisocial personality disorder allows you to act on it to a degree where you don't care what happens to the victim[.]"
The State next called Dr. Nicole Paolillo, a psychologist. Dr. Paolillo attempted to evaluate J.G. twice in 2011 and once in 2012, but he refused to meet with her. She reviewed J.G.'s criminal record, prior clinical examination reports, prison records, and treatment notes. Dr. Paolillo also diagnosed J.G. as suffering from paraphilia, opioid dependence, and antisocial personality disorder and found that he was likely to sexually reoffend. Dr. Paolillo rejected the suggestion that J.G.'s age would lessen the likelihood of reoffending.
J.G. called Dr. Daniel P. Greenfield, a psychiatrist who interviewed J.G. in 2011 and again in 2012. In a report dated April 4, 2012, Dr. Greenfield diagnosed J.G. with polysubstance abuse and dependence, paraphilia, and antisocial personality disorder. Although Greenfield agreed with the diagnoses of DeCrisce and Paolillo, he disagreed with their conclusion that J.G. was likely to sexually reoffend. Greenfield concluded that J.G.'s weakened condition rendered him "not capable of reoffending the way he did in 1990 and 1991[.]"
At the conclusion of the hearing, Judge Philip M. Freedman, rendered an oral decision, concluding that J.G. suffered from paraphilia, substance abuse, and severe antisocial personality disorder, which "predispose him to acts of sexual violence. And that if he were released he would have serious difficulty controlling sexually violent behavior."
On appeal, J.G. contends:
POINT IWe reject these arguments and affirm on the basis of Judge Freedman's comprehensive, fifty-eight page decision. We add only the following brief comments.
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT J.G. IS A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY CONTINUED CIVIL COMMITMENT UNDER THE CURRENT TREATMENT PLAN.
POINT II
IN THE ALTERNATIVE, THE COURT SHOULD HAVE ORDERED THE STU TO SUBMIT A CONDITIONAL DISCHARGE PLAN.
There are three prerequisites for a person to be classified as a "sexually violent predator." N.J.S.A. 30:4-27.26. J.G. does not contest the first prong, that his convictions for aggravated sexual assault are sexually violent offenses. Similarly, J.G. does not challenge the diagnosis, concurred in by his own expert that he suffers from a qualifying mental abnormality or personality disorder. J.G.'s only challenge is to Judge Freedman's conclusion that he is highly likely to sexually reoffend.
The scope of our review of judgments of commitment under the SVPA is "extremely narrow." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We must afford the trial court's decision "utmost deference" and modify only where the record reveals a clear abuse of discretion. Ibid. "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).
Applying those standards here, we are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. See 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 June 28, 2012.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION