Opinion
DOCKET NO. A-1260-15T2
06-21-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF M.O. SVP 464-07.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Victoria R. Ply, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-464-07. Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney). Victoria R. Ply, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney). PER CURIAM
M.O. appeals from an August 12, 2015 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. For the reasons that follow, we affirm.
M.O. was born in 1962 and is currently fifty-four years old. He was first convicted of a sexually violent offense in 1982 based on evidence that he and an accomplice forced their sixteen-year-old victim into a van where they raped and sodomized her and threatened to kill her if she did not submit. Following a jury trial, M.O. was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5); and third-degree threat to kill, N.J.S.A. 2C:12-3(b). On July 27, 1982, M.O. was sentenced to an aggregate forty-year prison term, subject to a twenty-year period of parole ineligibility.
The record shows that during his twenty-five years in prison, M.O. incurred twenty-three disciplinary infractions. Between 1998 and 2006, he was disciplined five times for exposing his genitals to female corrections officers while masturbating.
M.O. finished serving his prison sentence in 2007, and on November 29, 2007, following a full hearing, the court entered a judgment declaring him a sexually violent predator in need of civil commitment pursuant to the SVPA. On appeal, we affirmed the court's decision in an unpublished opinion. In re Civil Commitment of M.O., No. A-1850-07 (App. Div. Aug. 24, 2009).
In a July 28, 2014 order, entered after a review hearing, the trial court continued M.O.'s commitment to the STU. We again affirmed in an unpublished opinion, noting:
M.O. argues in this appeal that his continued commitment is based on the
assertion that he engages in exhibitionism — indeed, the record reveals that M.O. received numerous disciplinary infractions while in prison for exposing himself to female corrections officers. He claims [these] circumstances [are] greatly distinguishable from the predicate offense, which consisted of a rape of a sixteen-year-old girl at knifepoint. To the extent there may be merit to this theory about the alleged disconnection between what caused his commitment and what now keeps him committed, M.O. did not support this theory with any evidence or expert testimony. Because M.O. did not adequately develop this argument at the hearing, we decline to consider it further.
[In re Civil Commitment of M.O., No. A-5858-13 (App. Div. Apr. 20, 2015) (slip op. at 4).]
The most recent review, which is the subject of this appeal, was conducted on July 9, 2015, at which time the State presented the expert testimony of Dr. Roger Harris, a psychiatrist, and Dr. Paul Dudek, a psychologist and a member of the Treatment Progress Review Committee (TPRC) that conducted the most recent evaluation of M.O., and the author of its report dated July 2, 2015.
M.O. refused to be interviewed by Dr. Harris as part of this most recent review. However, Dr. Harris interviewed M.O. for approximately forty minutes in July 2014. He therefore formulated his medical opinion and diagnosis based on that prior interview along with his review of available documents customarily used by experts in the field. Dr. Harris noted that M.O's sexual behavior of exposing himself and masturbating in open view of staff members had carried over from prison to the STU. M.O.'s criminal history, which included other juvenile and adult offenses, and his institutional infractions, "strongly suggest[ed] that [M.O.] has difficulty controlling his sexual drive." Dr. Harris pointed out that M.O. had "done poorly in treatment" while at the STU, and that he was placed on treatment probation during the past year for having refused to participate in treatment, although he resumed again in November 2014.
Dr. Harris diagnosed M.O. with "a very strong antisocial personality disorder" and an exhibitionistic disorder, which M.O. himself described as being "like an addiction." Both of these disorders predisposed M.O. to sexually reoffend. Significantly, neither of these disorders "spontaneously remit," so that the risk for reoffense can only be mitigated through treatment. Further, M.O. had scored a seven on the Static-99R, which placed him "at high risk to sexually reoffend." Dr. Harris concluded that M.O. was highly likely to reoffend if his commitment at the STU was not continued. Specifically, he opined that such risk included M.O. "being sexually violent" and not merely exposing himself.
The Static-99R 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). [We have] 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 Civil 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)).]
M.O. also declined to be interviewed by Dr. Dudek. Like Dr. Harris, Dr. Dudek based his report on sources typically relied upon by experts in his field, including conversations with the treatment team and a review of M.O.'s STU treatment records. Dr. Dudek similarly characterized M.O.'s treatment performance as "relatively quite poor." He noted that M.O. had "never been promoted past Phase II and has actually been demoted at different points in Phase II back to Phase I. His participation has been marred by poor behavioral control," including a "sustained pattern" of "exposing himself [] or masturbating in front of staff." Dr. Dudek confirmed that M.O. was placed on treatment probation in July 2014, but eventually "became more positively engaged in [] his treatment program" in November.
Dr. Dudek diagnosed M.O. with exhibitionistic disorder, antisocial personality disorder, borderline intellectual functioning, and four correlated substance abuse disorders. He opined that M.O.'s exhibitionistic disorder "has [] a high rate of recidivism and re-offense," and "suggests an ongoing sustained pattern of [M.O.'s] inability to control [his] sexual urges." Were M.O. to engage in substance abuse in the community, "[i]t would certainly increase his risk for [] not only sex offending, but also other violent offenses, as well." According to Dr. Dudek, M.O. had not engaged in sufficient substance abuse treatment to mitigate his risk for using substances were he to be released. Dr. Dudek also characterized M.O.'s antisocial personality disorder as "strong," which, coupled with his score of seven on the Static-99R, placed M.O. at "high risk to reoffend sexually." He concluded:
[W]ithout the constraints of being in [] an institution, it would be my opinion that it would be highly likely that [M.O.] could continue to engage in the same kind of sexual behavior not only exhibitionism, but in the past he's shown a willingness to engage in this actual violent sexual offense . . . . I think that it's highly likely that he would continue to engage in that behavior.
M.O. testified on his own behalf, but called no experts. He explained to the court that he could not write in either English or Spanish, and that he desired to return to his native Puerto Rico. He also stated that he paid another resident of the treatment facility $150 per month to assist him with the writing portion of his assignments. Consequently, M.O.'s counsel argued that the STU was not meeting his needs and that his treatment progress was being delayed as a result. Counsel urged that a comprehensive discharge plan be developed for M.O. because he was currently positively engaged in treatment and not displaying any symptoms of antisocial personality disorder. Alternatively, counsel requested that the STU be required to provide M.O. with a paid tutor to assist him with his reading and writing assignments.
At the close of the evidence, Judge Mulvihill ordered that the STU provide assistance to M.O. with his written work requirements. On July 13, 2015, the judge rendered an oral opinion in which he concluded that M.O.'s commitment should continue. The judge found "that since last November [M.O.'s] been doing much better, but he still has a ways to go in terms of treatment." He further found that M.O. had been convicted of a "very serious sexual violent offense" and that M.O. "continues to suffer from mental abnormality and personality disorder [that] does not spontaneously remit [and] can only be mitigated by way of treatment." Judge Mulvihill determined that M.O. is "predisposed to sexual violence, emotionally, cognitively, and volitionally." He concluded the State had proved by clear and convincing evidence that "at present [M.O. is] highly likely to engage in further acts of sexual violence if not confined to a secure facility for care and treatment." This appeal followed.
The judgment provided that M.O. "be permitted to participate in the Spanish-speakers' self-help group at the STU as soon as it is established." At oral argument before us, counsel for M.O. did not challenge this provision of the judgment or raise any further concerns about the literacy issue. As a result, we do not address this issue further. --------
We begin with a review of basic principles. 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. "[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 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 132-33; 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.
Our Supreme Court has recently reaffirmed that an appellate court's scope of review of a judgment for commitment under the SVPA "is extremely narrow." R.F., supra, 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We must "give deference to the findings of our trial judges because they have the 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Moreover, "[t]he 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)). Accordingly, a trial court's determination is accorded substantial deference, and may "be modified only if the record reveals a clear mistake." D.C., supra, 146 N.J. at 58.
M.O. again argues in this appeal that his recent sexual activity, i.e., exposing himself in prison and at the STU, does not meet the criteria for an act of sexual violence that is required to sustain his continued commitment under the SVPA. Again, as in his earlier 2014 appeal, M.O. did not support this theory with any expert evidence. Moreover, both of the State's experts diagnosed M.O. with an antisocial personality disorder. An antisocial personality disorder is a recognized personality disorder, and can be sufficient to require commitment under the SVPA when the symptoms manifest in a sexually violent manner and it reduces the offender's ability to control his or her sexually violent conduct. See, e.g., In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 629 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Combined with his exhibitionist and substance abuse disorders, both experts concluded that M.O. presented a high risk to reoffend in a sexually violent manner. Accordingly, we discern no clear error in the trial court's determination that the State had proven by clear and convincing evidence that M.O. suffered from a mental abnormality or personality disorder that predisposed him to sexual violence and warranted his continued commitment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION