Opinion
DOCKET NO. A-1442-12T2
05-02-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF C.G. SVP-639-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-639-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief). PER CURIAM
C.G. appeals from the October 2, 2012 Law Division's order committing 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. He contends the State failed to sustain its burden of proof because it relied mainly on C.G.'s past crimes, ignoring those periods of time when he demonstrated an ability to avoid sexually harmful behavior. Furthermore, he argues the court erred in crediting the State's expert witnesses because "there were obvious holes in their diagnoses" of pedophilia and their testimony placed undue emphasis upon C.G.'s "poor historical account of his offenses as well as his own life." We disagree and affirm.
I.
C.G. is a twenty-seven-year-old male with a history of repeated sexual assaults. C.G.'s first offense occurred when he was thirteen years old when he sexually offended a two-year-old boy he was babysitting. C.G. pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c). He was sentenced to a thirty-six-month probationary term, which included various treatment programs.
Three years later, while still on probation, C.G., then seventeen years old, entered into a sexual relationship with a twelve-year-old girl. He later pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). He was sentenced to a seven-year term of incarceration at the Adult Diagnostic and Treatment Center (ADTC), with an eighty-five percent parole disqualifier, and community supervision for life. In June 2010, while incarcerated at the ADTC, C.G. attended a family day function at the center and interacted with a nine-year-old girl who was visiting the prison. C.G. proceeded to touch the child's breast and shoulders; he was subsequently found guilty of unauthorized physical contact in a Department of Corrections proceeding.
Throughout his incarceration at the ADTC, C.G. demonstrated an unwillingness to attend therapy sessions and treat his condition. An ADTC treatment summary, dated November 23, 2011, indicated C.G.'s attendance at "both his assigned sex-offender therapy and mental health groups has been inconsistent, and often times nonexistent[;]" even when he attended therapy, his participation was described as "consistently inadequate."
C.G. also has a history of non-sex offenses, including burglary, theft, criminal mischief, and criminal trespass. He also has an extensive substance abuse history; he began drinking alcohol when he was fifteen-years-old, and started using marijuana and cocaine when he was sixteen-years-old. He also admitted to abusing ecstasy and experimenting with heroin, oxycontin, and xanax.
Prior to the expiration of his sentence, the State moved civilly to commit C.G. as a sexually violent predator. The commitment hearing was conducted on September 28, 2012. At the hearing, the State offered documentary evidence and presented the testimony of Jamie Canataro, Psy.D., a clinical psychologist and Pogos Voskanian, M.D., a psychiatrist. C.G did not testify or present any other witnesses or evidence.
Dr. Canataro evaluated C.G. on August 29, 2012 for approximately two hours and reviewed the records of his offenses and treatment. She diagnosed C.G. with non-exclusive pedophilia, personality disorder NOS with antisocial features, provisional substance abuse, and borderline intellectual functioning. Dr. Canataro testified C.G. was unable to control his arousal pattern while he was incarcerated and the pedophilia will not just "disappear"; "arousal patterns do not spontaneously remit", but rather are expected "to be consistent throughout the life span."
Regarding the personality disorder, Dr. Canataro indicated C.G. has many features consistent with a true antisocial personality disorder, including: lack of impulse control, poor judgment, disregard for others, difficulty experiencing empathy, and lack of remorse. However, she noted she does "not feel that he met the criteria for the full diagnosis, just that he had many of the features consistent" with it. Nevertheless, Dr. Canataro believes C.G.'s "pedophilic arousal is easily acted upon, because of these personality features."
Dr. Canataro stated C.G was "highly likely" to sexually offend in the foreseeable future unless he was confined in a secure facility. She based this conclusion on several factors. First, C.G.'s score on the Static-99R test, an actuarial measure of relative risk for sexual offense recidivism, placed him in the high-risk category to reoffend. Second, C.G.'s failure to stop offending under previous supervision, namely his continued sexual deviance while on probation, while a Megan's law registrant, and even while he was incarcerated. Third, C.G.'s combined diagnosis of pedophilia and antisocial personality disorder, along with his limited treatment effect, increases his risk to reoffend. Fourth, she cited C.G.'s young age and "superficial understanding of sex offender treatment."
Dr. Voskanian conducted two examinations of C.G., one in April and the other in August 2012, for a total of two hours and forty-five minutes. Dr. Voskanian provisionally diagnosed C.G with pedophilia and antisocial personality disorder consistent with C.G.'s lack of empathy, remorse, and disregard for laws and social norms. Dr. Voskanian further diagnosed C.G. with post-traumatic stress disorder, as well as polysubstance dependence disorder.
Dr. Voskanian concluded C.G. was at a "[h]igh risk" to reoffend based largely on his continued violations of moral and legal rules even while under supervision; further, C.G.'s antisocial disorder caused poor impulse control. Dr. Voskanian concluded he would need more interviews with C.G. before he would be able to differentiate whether his deviant behavior was driven mainly by his antisocial disorder or pedophilia.
Based on the unrebutted expert proofs, the trial judge found C.G. to be a sexually violent predator by clear and convincing evidence. The judge found C.G. suffers from "a personality disorder, that does not spontaneously remit; that . . . predispose[s] him to sexual violence, [and] affects him emotionally, cognitively and volitionally;" if not confined in a secure facility, he "is highly likely . . . to engage in further acts of sexual violence." Accordingly, the judge entered an order committing C.G. to the STU. This appeal followed.
II.
To warrant commitment of an individual under the SVPA, the State must prove "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 consider the individual's "present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." Id. at 132-34.
Our review of a trial court's decision in a commitment proceeding under the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009) aff'd, 204 N.J. 179 (2010) (citing In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). Further, we "must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." Ibid. (citing In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Modification is only proper on appeal when the record reveals a clear abuse of discretion. Ibid. (citing J.M.B., supra, 395 N.J. Super. at 90). Accordingly, the reviewing court has a responsibility to "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58— 59 (1996)).
Given our deferential standard of review, we find no basis for reversal. Both of the State's experts were aware of C.G.'s incarceration in the ADTC, and they knew of the treatment he received there. They each diagnosed C.G. with pedophilia or provisional pedophilia and were unconvinced the effects of C.G.'s treatment had mitigated his risk to sexually reoffend. The experts explained how they each reached their conclusions, and we discern no improper consideration of C.G.'s criminal history in the experts' derivation of their opinions.
The majority of C.G.'s appellate arguments essentially challenge the weight of the evidence that was arrayed against him. He criticizes the sufficiency of the diagnoses of pedophilia and provisional pedophilia, but offers nothing by way of expert testimony or convincing argument to support his lay assertion the experts' opinions were flawed. He further takes issue with the experts' failure to credit the fact he was not charged with violating his probation until it was almost completed. The trial judge heard the direct and cross-examinations of both experts, and concluded, as do we, that sufficient credible evidence exists in the record to support the expert opinions offered at trial and relied upon the trial judge. Moreover, the judge favorably commented upon the experts' opinions as being "very credible." We discern no basis to disturb this finding or any other determination of the court. The judge properly applied the law to these findings supporting his legal conclusions.
As to this contention, we note the violation of probation summary filed in December 2004 stated that C.G.'s "adjustment to his almost three years of probation supervision can best be described as poor. He has not benefited from his attendance [at his treatment] program[s]. He continues to use poor judgment, ignore probation conditions and flagrantly violate the law."
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION