Opinion
DOCKET NO. A-0027-15T2
12-07-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF S.M., SVP-308-03.
Alison Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Victoria Ply, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-308-03. Alison Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Victoria Ply, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney). PER CURIAM
S.M., a sex offender who was civilly committed in 2003 to the Special Treatment Unit ("STU") pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, appeals the trial court's June 1, 2015 decision continuing his commitment after a review hearing. We affirm.
Appellant has a lengthy history of sexual offenses which have already been recounted in this court's prior opinions upholding his commitment under the SVPA. In 1986, appellant sexually assaulted an adult female at knifepoint in upstate New York, resulting in his conviction for attempted rape, assault and criminal possession of a weapon. In 1988, appellant was charged with raping a different victim at knifepoint in Buffalo, and he entered into a plea agreement to a lesser charge of attempted burglary. In 1993, he was again arrested and charged with aggravated sexual assault of another woman at knifepoint and pled guilty to a lesser charge of possession of a weapon for an unlawful purpose.
See In re Civil Commitment of S.B.M., No. A-6426-04 (App. Div. Apr. 16, 2007) (upholding appellant's initial commitment); In re Civil Commitment of S.B.M., No. A-2384-07 (App. Div. Sept. 3, 2008) (remanding the matter to a different judge for hearing); In re Civil Commitment of S.B.M., No. A-1703-08 (App. Div. June 22, 2009) (upholding appellant's continued commitment); In re Civil Commitment of S.M., No. A-2105-09 (App. Div. June 2, 2010) (same); In re Civil Commitment of S.M., No. A-2623-12 (App. Div. Jan. 24, 2014) (same).
Then in 1997, appellant pled guilty and was convicted of the predicate offense of aggravated sexual assault, amended to sexual assault, of another victim, N.J.S.A. 2C:14-2(a)(3), along with a drug possession count, N.J.S.A. 2C:35-10(a)(1). He was sentenced in this last prosecution to a ten-year prison term, to be served at the Adult Diagnostic and Treatment Center ("ADTC"). Appellant does not contest that, given this criminal history, he has engaged in sexual offenses qualifying him for civil commitment under the SVPA.
The State presented two expert witnesses at appellant's most recent review hearing in May 2015: Dr. Marta P. Scott, a psychiatrist, and Dr. Zachary Yeoman, a psychologist who is a member of the Treatment Progress Review Committee ("TPRC") at the STU. Appellant presented in his defense the expert testimony of a psychologist, Dr. Barry Zakireh. All of the mental health experts were deemed qualified to offer their opinions, and their written reports were all admitted into evidence without objection.
Dr. Scott diagnosed appellant with "Other Specified Paraphilic Disorder (non-consent type)" and antisocial personality disorder. She noted that the paraphilic diagnosis is "persistent," and that it "predisposes [appellant] to commit future acts of sexual violence." She related that appellant's record repeatedly describes him as "a hostile and irritable individual with little remorse for his victims," and that his history "is notable for many examples of manipulativeness and extortion."
As noted by Dr. Scott, a report by the TPRC from April 2012 indicated that appellant continued to "endorse his criminal lifestyle" and that he could not "connect his violent background with any current need to think differently." Appellant refused to participate in "any/all modules[.]"
In 2013, appellant's demeanor appeared to improve. It was recommended, however, that he repeat the "Relapse Prevention 2B" module because he "omitted three out of five offenses listed in his record." Subsequent treatment reports in 2015 indicated that appellant was progressing. Even so, the TPRC declined to advance appellant beyond "Phase 3A" of treatment within the STU "due to his psychopathic personality structure, significant deviant sexual arousal with a high victim impact, and longstanding issues with cooperating with supervision."
In her testimony at the review hearing, Dr. Scott noted that appellant was "very hostile, belligerent, defensive, and argumentative" from the very beginning of her pre-hearing interview with him. Based on her observations, appellant still requires additional therapy, namely time in the STU's "Therapeutic Community," because of his continued "active antisocial tendencies and traits." In Dr. Scott's opinion, appellant is "still . . . in a relatively early phase of treatment[,]" and that, despite recent improvement, "his personality characteristics are interfering with his treatment engagement[.]"
Dr. Yeoman, the State's testifying psychologist, largely echoed Dr. Scott's findings. He noted that the TPRC acknowledged that appellant had made progress over the last year, but "the hostility and negative emotionality that he has expressed over time is likely deeply entrenched" and that those qualities "manifested themselves during the current TPRC interview." Like Dr. Scott, Dr. Yeoman also provided a diagnosis of both "Other Specified Paraphilic Disorder (nonconsent)" and antisocial personality disorder. He supported keeping appellant in Phase 3A of treatment, noting that the next logical step is for appellant to "experience a level of scrutiny and demands that mirrors what he will experience in the community."
Dr. Yeoman opined that appellant must further develop relapse prevention strategies:
The statements he's made about if he wants a woman he'll go buy one, he gets more pussy than the average man, regarding having sex every other day in the community, and taking out his feelings of anger and hostility on his victims suggests to me . . . a fairly high sex drive in the community, going to prostitutes . . . perhaps because of that high sex drive, and attempting to cope with negative affects . . . potentially through sexual offending.Dr. Yeoman recognized that appellant has appeared to be more open to treatment in the past two years, but expressed skepticism about whether that presentation was "calculating" rather than genuine.
So, it would be important that he develop relapse prevention strategies, specifically as to how he would better manage those issues in the community.
Appellant's expert, Dr. Zakireh, disagreed with the State's experts as to whether appellant has a paraphilic disorder. However, Dr. Zakireh did agree with the diagnosis of antisocial personality disorder, although he took issue with the degree that disorder predisposes appellant to sexually violent conduct. He also noted that appellant scored in the "moderate risk" category on the Static 2001-R test.
By analogy, "[t]he Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003). The Court has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" In re Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). --------
Upon considering the experts' testimony, the reports, and other items in the record, Judge Philip Freedman issued a detailed oral opinion on June 1, 2015, concluding that the State had proven by clear and convincing evidence that the State had proven the criteria for appellant's continued civil commitment under the SVPA. Judge Freedman credited the concerns of the State's experts and the TPRC that, given appellant's underlying psychological disorders, he needs to go into the therapeutic community "to see whether or not he, in fact, has internalized what he has learned and can put it to use to control himself and to deal with issues and rules where he may not agree with them." As the judge summarized his findings:
I'm satisfied to find by clear and convincing evidence that [appellant], as I found in 2012, does, in fact, suffer from a mental abnormality in the form of a paraphilia and a personality disorder, and that the combination of those two is, as he said, the most robust predictor of future sexual violence, and that if he were released he would have serious difficulty controlling his sexually violent behavior and would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence, as well as other kinds of criminal violence.
Appellant contends that the trial court erred in this conclusion, and argues that he has received sufficient treatment to be released from the STU. He complains that the TPRC has arbitrarily held him back from advancing beyond Phase 3A, and that the more receptive demeanor he has exhibited in the past two years ought to receive more significance.
The applicable law and our scope of review is well settled. An involuntary civil commitment under the SVPA can follow an offender's service of a custodial sentence, or other criminal disposition, when he or she "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. As defined by the statute, a "mental abnormality" consists of "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. The mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).
At the SVPA commitment hearing, the State has the burden of proving that the offender poses a threat:
to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.The court must address the offender's present "serious difficulty with control over dangerous sexual behavior." Id. at 132-33. To commit or continue to commit the individual to the STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; see also R.F., supra, 217 N.J. at 173.
[W.Z., supra, 173 N.J. at 132.]
The trial court correctly applied these standards to the evidence adduced at the 2015 review hearing. The testimony of both of the State's experts clearly demonstrates that appellant continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released. The trial court had a reasonable basis to credit the testimony of those experts over the more positive opinions of Dr. Zakireh. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (recognizing the fact-finder's prerogative to accept the opinions of certain testifying experts and to reject competing opinions of an opposing expert).
The scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to special deference." Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). On appeal, we should not modify the SVPA trial judge's determination either to commit or release an individual "unless the record reveals a clear mistake." Id. at 175 (internal citations omitted). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).
Although it appears that appellant has exhibited some progress in the past two years, we are satisfied that the trial court's order of continued commitment is both legally sound and supported by sufficient credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION