Opinion
DOCKET NO. A-0242-11T2
04-11-2012
IN THE MATTER OF THE CIVIL COMMITMENT OF R.L.L., SVP-42-00.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-42-00.
Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney). PER CURIAM
R.L.L., appeals from a July 19, 2011 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
R.L.L., who is now 68 years old, has a record of sexually violent acts dating from about 1960, when he was sixteen years old, until his last conviction in 1992, at the age of forty- seven, for first-degree aggravated sexual assault. That conviction, involving the forcible rape of a co-worker at knifepoint, served as the predicate offense, triggering R.L.L.'s commitment in 2000 to the STU under the SVPA. It was also committed less than two years after his October 1989 parole from the Adult Diagnostic Treatment Center (ADTC), where he was admitted in May 1979 following his April 1979 conviction for threatening to kill one victim with a gun and vaginally raping another in the back seat of his car.
R.L.L. had a substantial record of juvenile adjudications, although he was never charged with sexual offenses as a juvenile. At a later time, he admitted that, while with a gang as a teenager, he had raped girls on two occasions. During his early years, in 1963 and 1971, rape charges were brought against him and subsequently dismissed for reasons not evident in the record.
Prior to his initial commitment in 2000, R.L.L. was diagnosed with paraphilia, not otherwise specified (NOS), and with anti-social personality disorder. Concern was also expressed at that time that R.L.L. had received treatment for a decade during his pre-April 1991 incarceration, but nonetheless had reoffended after parole and community supervision. Since that time, R.L.L. has had numerous review hearings resulting in his continued commitment, and we affirmed on those occasions he sought appellate review of orders extending his commitment. In the Matter of Civil Commitment of R.L.L., SVP-42-00, No. A-0631- 09 (App. Div. April 13, 2010); In the Matter of Civil Commitment of R.L.L., SVP-42-00, No. A-6496-05 (App. Div. March 1, 2007); In the Matter of Civil Commitment of R.X.L., SVP-42-00, No A-5883-04 (App. Div. May 1, 2006).
At the most recent review hearing, which is the subject of this appeal, Dr. Marta P. Scott, M.D., the State's expert, diagnosed R.L.L. with paraphilia NOS and sexual sadism. Scott noted the progress R.L.L. has made in treatment over the last year:
[R.L.L.] has a fairly sophisticated understanding of his sex offender cycle and the underlying historic psychodynamic factors. He is able to identify emotional states that he associates with offending, and has a well articulated relapse prevention plan. He has two elaborate aversive scripts and presented his maintenance contract to his process group over the last review period. He [also] passed his Deviant Arousal Polygraph
. . . .
Despite this progress, Scott nonetheless opined that R.L.L. was still in the high risk category for reoffending, even considering his age. She explained:
[R.L.L.] has a history of extremely poor premorbid functioning, early onset general criminality, poor impulse control and polysubstance abuse. He started his sexual offenses at an early age and repeatedly reoffended while under parole supervision. He committed his predicate offense less than two years after his release from the ADCT, following 10 years sex offender treatment.Scott therefore concluded:
In consideration of all the previous information, it is my opinion within a reasonable degree of medical certainty that [R.L.L.] continues to suffer from mental abnormalities that, at present, affect his cognitive, emotional and volitional capacity such as to make him highly likely to sexually reoffend if not kept under the care, treatment and control of a secure facility such as that provided by the STU.
Scott did opine, however, that if R.L.L. "is able to maintain his positive treatment trajectory[,] he may be an appropriate candidate for transitional discharge planning in the near future. With transitional planning, progressive furloughs and gradual de-escalation of restraints, [R.L.L.] may be able to reduce his risk below the 'highly likely' level of risk for sexual recidivism as described in the New Jersey SVP Act, with adequate monitoring."
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Dr. Christine Zavalis, a psychologist and member of the Treatment Progress Review Committee (TPRC), also testified for the State. She also diagnosed R.L.L. with paraphilia NOS and sexual sadism. Zavalis described R.L.L.'s progress as slow but steady, commenting that during the current review period, R.L.L. has demonstrated improvement with regard to his overall attitude, motivation in treatment, entitlement issues, defensiveness, and frustration tolerance. Zavalis commended R.L.L.
for his consistent engagement in treatment and improvement with regard to his overall attitude. He appears to have taken the previous TPRC recommendations seriously,
improved his attitude, and has worked to address his treatment issues. The TPRC panel is hopeful that we will be able to maintain the positive presentation he demonstrated during the current review period.
Nevertheless, Zavalis opined that R.L.L. was still in the high risk category for reoffending, as
[t]here are several factors that cause the panel to view [R.L.L.'s] case with caution. Of particular concern are his high actuarial scores, the early onset and length of his offending history, the nature of his deviant arousal, the level of victim impact, and that he reoffended while under parole supervision and after receiving 10 years of sex offender treatment at the ADTC. He has also not demonstrated the typical 'antisocial burnout' in that he last offended at the age of 47 and continued to violate institutional rules while at the STU at the age of 60. However, given his current age, additional 20 years of exposure treatment, improved behavioral control over the past 6 years, progress with regard to his treatment issues, and current treatment compliance, the panel is cautiously optimistic that he could be a viable discharge candidate at some point in the future if he were to continue to demonstrate the same level of behavior control, compliance, and engagement in treatment that he did during the current review period.Accordingly, Zavalis concluded:
Given the static and dynamic risk factors assessed, and the level of progress achieved, [R.L.L.] continues to remain at high risk to sexually reoffend and, therefore, it is the recommendation of the TPRC panel that he remain is Phase 3. He is encouraged to continue demonstrating active
engagement in treatment by addressing the above recommendations.
Dr. Timothy Foley, Ph. D., testified on behalf of R.L.L. Noting R.L.L.'s significant progress over the past nineteen months, benefits gained from Therapeutic Community participation, the absence of recent instances of substance abuse or institutional infractions, and his advanced age, Foley concluded:
[R.L.L.] appears appropriate for conditional discharge. The combination of court oversight, GPS monitoring, random drug and alcohol screens, and continued treatment provide adequate safeguards for community safety and render him less than 'highly likely' to commit sexually violent acts in the future. He appears able to comply with requirements of a conditional discharge plan.
At the close of evidence, Judge Pursel credited Scott's and Zavalis' expert opinions over Foley's, finding there to be clear and convincing evidence that R.L.L. has been convicted of a number of sexually violent offenses and he suffers from a mental abnormality or personality disorder, paraphilia NOS and sexual sadism. The judge concluded that "there is clear and convincing evidence that [R.L.L.] is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment." Accordingly, the reviewing court continued R.L.L.'s civil commitment for another year. 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(b). "[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[,]" and the State must establish that it is "highly likely" that the committee will reoffend "by clear and convincing evidence." Id. at 132-33. See 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 committee 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 committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in 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.
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 . . . 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 Pursel in his oral opinion of July 19, 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