Opinion
DOCKET NO. A-3848-13T2
03-10-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF M.K., SVP-355-04.
Michael Denny, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Nicole Adams, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-355-04. Michael Denny, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Nicole Adams, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
M.K. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals from the March 26, 2014 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4-27.35. We affirm.
M.K. is forty-eight years old and has been committed to the STU since 2004. His first conviction occurred in 1985, when M.K. was nineteen years old. M.K. admitted to performing cunnilingus on two seven-year-old girls, his step-sister and her friend, for which he was convicted of two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a.
Shortly after being released on parole in 1991, M.K, then twenty-five years old, molested C.G., a four-year-old boy. M.K. admitted to pulling down C.G.'s shorts and underwear, fondling his penis and performing fellatio. M.K. was convicted of first-and second-degree sexual assault, N.J.S.A. 2C:14-2a(1) and -2b, and criminal attempt, N.J.S.A. 2C:5-1 and 2C:14-2a(1), and was sentenced to an aggregate twenty-year term at the Adult Diagnostic Treatment Center (ADTC) in Avenel.
M.K. reported that he was adjudicated delinquent of arson as a juvenile, but no record of the offense has been located. He explained that the fire started accidentally when he was filling a lighter with fluid. M.K. has no other non-sexual criminal charges or convictions.
Upon his scheduled release, the State petitioned for SVPA commitment and an order of commitment was entered on August 19, 2004, involuntarily committing M.K. to the STU. Annual review hearings in 2005, 2006, 2007, 2008, 2009, 2010 and 2013 resulted in orders continuing his involuntary commitment. M.K. appealed the 2006 order, which we affirmed in In re Civil Commitment of M.K. SVP-355-04, Docket No. A-692-06 (App. Div. Apr. 10, 2007), and the 2008 order, which we affirmed in In re Civil Commitment of M.K. SVP-355-04, Docket No. A-169-08 (App. Div. Apr. 24, 2009).
The review hearing at issue took place on March 26, 2014. The court heard testimony from Dr. Chester L. Trent, a psychiatrist, and Dr. Jaime Canataro, a psychologist and member of the STU's Treatment Progress Review Committee (TPRC). Dr. Trent diagnosed M.K. as having pedophilic disorder, social anxiety disorder, and antisocial personality disorder. He testified an arousal polygraph taken a year and a half ago showed M.K. was currently aroused by children, and that M.K. scored a five on the Static 99, placing him in the high-moderate risk category for re-offense. Dr. Trent noted M.K.'s progress in treatment, but stated his progress was slow because of M.K.'s difficulty in being forthright.
Dr. Canataro, a member of the TPRC that conducted an annual evaluation of M.K., diagnosed him as suffering from pedophilia and avoidant personality disorder. She testified that she and the panel recommended placing M.K. in treatment phase 3A. According to Dr. Canataro, M.K. has acknowledged an additional sixteen female molestation victims between the ages of three and fourteen years old. Although she reported that M.K. is always respectful of others in the treatment group and is showing some improvement in treatment, she testified that he is shy and quiet in his groups and can give the impression of not being forthcoming. She testified that the arousal polygraph confirmed "a significant arousal to underage females" in spite of M.K.'s claim that he is most aroused by adult females. She stated that one of the core treatments is to help M.K. be transparent about his struggle with being sexually attracted to underage females, which he currently does not do. Dr. Canataro also rated M.K. a five on the Static 99.
Following the conclusion of testimony, Judge Pursel ordered M.K.'s continued commitment to the STU. The judge reviewed the unrebutted testimony, noting that he placed slightly more weight on the TPRC treatment report than on the interviews of the psychiatrists. Judge Pursel found
from Dr. Canataro's testimony . . . that the resident has completed many, many avoidance reconditioning modules. Some more than once.
But Dr. Canataro indicates that he still has not been able to modify his deviant arousal to prepubescent [girls]. He claims arousal to adult women, but the objective tests and the history indicate that that is a made up arousal because, as they testified, he's ashamed of his deviant arousal pattern. Doesn't want to admit that he's still aroused to it. Still suffers from the pop up . . . fantasies which occur
pretty frequently of prepubescent . . . children — females.
Static 99, which is a static test, scores a five which is a higher — moderate to high risk. Declines only with age. Dr. Trent analyzed Pedophilic Disorder and sets forth the reasons for that on page 16 of his report. Social Anxiety Disorder, he sets forth the reason for that on pages 16 and 17.
And he also finds an Antisocial Personality Disorder which attributes mainly to the pedophilic contact . . . over a long period of time which is so ingrained and so fixed that it represents a person with an antisocial personality. There is one non-sexual offense. An offense of arson — which is often troubling, for which he was given a probationary term.
Dr. Canataro also finds Pedophilia because of the intense arousal beginning at an early age and continuing for more than six months, involving exclusively prepubescent females. The resident admits sixteen offenses for which he was never prosecuted dealing with the same age group, with perhaps one exception. His preference is for females, although one male who at a very young age represented his predicate offense.
He has had extensive treatment at the Adult Diagnostic and Treatment Center from an early age which according to the testimony furnished here was not very successful for one reason or another. . . .
He's been a resident of the STU for about ten years also. He was admitted in January of 2004 and he remains here. He was originally placed in Therapeutic Community. . . .
[M.K.] is currently in 3A and has clear guidelines set forth for him by Dr. Canataro that he must follow to gain, again, admission to the Therapeutic Community, which is essential for him to begin dealing with the intense arousal to pedophilic fantasies. Even after having taken many reconditioning avoidance modules.This appeal followed.
The court is satisfied by clear and convincing evidence that the resident has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder as set forth in both the reports of Dr. Trent and Dr. Canataro, that there is clear and convincing evidence that he's highly likely to engage in future acts of sexual violence if not confined in a secure facility for control, care, and treatment, and advancement to another level.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. In order to secure an order for commitment under the SVPA, the State must prove the individual is a threat to the health and safety of others because of the likelihood of engaging in sexually violent acts. W.Z., supra, 173 N.J. at 132. The State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is "highly likely" the person "will not control his or her sexually violent behavior and will reoffend." Ibid. The court must address the person's "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; 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 W.Z., supra, 173 N.J. at 126-32. "[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.
The scope of appellate review of a judgment for commitment under the SVPA is "extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014). The trial court's decision is to be given "special deference" and modified only when the record reveals "a clear mistake." Id. at 174-75. "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. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Pursel in his oral opinion of March 26, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION