Opinion
DOCKET NO. A-0198-12T2
04-29-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF W.Z. SVP-31-99.
Joseph E. Krakora, Public Defender, attorney for appellant W.Z. (Patrick Madden, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacobine K. Dru, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-31-99.
Joseph E. Krakora, Public Defender, attorney for appellant W.Z. (Patrick Madden, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacobine K. Dru, Deputy Attorney General, on the brief). PER CURIAM
W.Z. appeals from the June 25, 2012 order of the Law Division, vacating a 2010 order of conditional discharge and temporarily committing him to a Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A 30:4-27.24 to -27.38. W.Z. also appeals from the August 1, 2012 order finding that he violated his conditional discharge and is a sexually violent predator (SVP) in need of civil commitment For the reasons that follow, we affirm.
I.
In 2001, we affirmed a prior order of commitment of W.Z. as an SVP. In re Commitment of W.Z., 339 N.J. Super. 549, 580 (App. Div. 2001). We also rejected W.Z.'s challenge to the constitutionality of the SVPA. Id. at 555. The Supreme Court affirmed our finding that the SVPA was constitutional but remanded to the trial court for a determination of whether W.Z's mental condition caused the required degree of inability to control sexually violent behavior to justify his commitment under the Act. In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).
We repeat a summary of the facts of W.Z.'s criminal and juvenile history from our 2001 opinion:
On January 27, 1995 W.Z. was sentenced to eighteen months in the New Jersey State Prison for fourth-degree criminal sexual contact, five years for making terroristic threats, and five years for aggravated assault. These three sentences were imposed concurrently. When W.Z. served his [maximum] sentence, he was temporarily committed to the [STU] on December 13, 1999.
W.Z., born on June 10, 1966, has an extensive criminal and juvenile history starting at age twelve. W.Z. was adjudicated a juvenile delinquent for offenses that included possession of marijuana (two counts), assault and battery,
joyriding (three counts), larceny, theft (four counts), driving without a license (three counts), criminal trespass, eluding a police officer (two counts), aggravated assault (three counts), criminal sexual contact, burglary (three counts), receiving stolen property, obstructing the administration of a law, disorderly conduct (two counts), terroristic threats (two counts), resisting arrest and drinking in public. W.Z. was incarcerated at the Youth Correctional Facility at Jamesburg several times between 1978 and 1984. As an adult, W.Z. incurred convictions for simple assault (four counts), resisting arrest (four counts), receiving stolen property, burglary (two counts), aggravated assault (three counts), terroristic threats (three counts), eluding a police officer, attempted sexual assault, and criminal sexual contact.
W.Z.'s first sexual offense occurred in 1982 at age 16 when he suddenly beat-up a female whom he said he was "comforting" after a man hit her. W.Z. denied sexually assaulting the victim and blamed the incident on LSD he said was put into his drink at a party. He was sent to the reformatory at Jamesburg for aggravated assault and criminal sexual conduct.
W.Z.'s second sexual offense occurred in 1989 when he physically assaulted and attempted to rape a woman he met in a bar. After they left the bar, W.Z. grabbed the woman in a headlock, dragged her into the woods, repeatedly punched her in the face, and choked her until she passed out. W.Z. then began removing the woman's clothing, but was frightened away by the police before raping her. W.Z. also denied assaulting this victim, saying that she agreed to have sex with him, but that she got nasty and he had to defend himself.
W.Z.'s [1995] conviction for criminal sexual contact resulted after he accosted a woman at a train station, lifted her skirt above her head, and grabbed her buttocks. W.Z. stated that he was drunk at the time of this incident and has no recollection of what took place.
[W.Z., supra, 339 N.J. Super. at 556-57.]
On January 29, 2010, W.Z. was conditionally discharged. His release was subject to several conditions. He was required to reside with his father; participate in out-patient sex offense and substance abuse counseling once a week; attend AA meetings three times per week; maintain weekly contact with the STU; abstain from alcohol and drugs, and submit to random urine analyses; comply with community supervision for life; wear a G.P.S. tracking device; seek and maintain employment; and not patronize any bar, club, or business that had the primary purpose to sell or consume alcohol.
Two incidents occurred subsequent to W.Z.'s discharge that resulted in no-contact orders. In 2010, W.Z. joined a gym and became acquainted with the female owner of the gym. W.Z. made the gym owner uncomfortable by touching her neck and referring to her as his "little buddy." The owner found W.Z. "creepy" and barred him from the gym. W.Z. later claimed that he was in love with the owner and acknowledged that his behavior was inappropriate.
The second incident involved a woman with whom W.Z. had a dating relationship. After the relationship ended, W.Z. parked his car in front of her house for six to ten hours. After she told him he could not sit outside her house, W.Z. left flowers at her house twice.
As a result of the two incidents, Dr. Doreen Stanzione evaluated W.Z. Although Dr. Stanzione was "extremely concerned" over the two incidents, she did not find him highly likely to sexually recidivate. She concluded that if W.Z. "should . . . be found to engage in problematic, high risk, behavior again [she] would most certainly recommend he be returned to the STU."
In February 2012, W.Z.'s G.P.S. tracking device indicated that he had patronized JP's Steakhouse in Manville on three occasions. The restaurant had an attached bar. W.Z. was warned by his parole officer to avoid such a "high risk" atmosphere.
On March 10, 2012, W.Z. left his house a half an hour earlier than permitted, and on March 31, he was issued a summons for speeding over 100 miles per hour.
In April 2012, W.Z.'s urine test result was positive for ethanol, suggesting he had been consuming alcohol. W.Z. protested the results and claimed that he had been taking eight to ten bottles of cough medicine a day. His explanation was rejected, as most cough syrups do not contain ethanol. On May 8, 2012, W.Z. signed a consent order agreeing not to patronize any establishment that serves alcohol.
On June 7, 2012, during a home visit, parole officers detected the smell of alcohol on W.Z. after he had been driving His urine and saliva tested positive for alcohol and police field sobriety and breathalyzer tests also were positive for alcohol. W.Z. claimed that he drank lemonade at a friend's house that he did not know was alcoholic at first, but admitted he continued to drink it after realizing it. On that day, the parole officers also confiscated pornographic materials, nun-chucks, and a black ski mask from W.Z.'s bedroom. W.Z. was arrested for driving while intoxicated and the State filed to have him recommitted.
"A nun-chuck consists of two sticks which are connected by chain or cord. They are used by those trained in the discipline of karate." Tatom v. State, 555 S.W.2d 459, 460 (Tex. Crim. App. 1977).
At W.Z.'s civil commitment hearing, Dr. Roger Harris and Dr. Stanzione testified for the State, Dr. Christopher Lorah testified for W.Z. Dr. Harris had conducted a psychiatric evaluation of W.Z. and reviewed W.Z.'s treatment records, presentence reports, prior treatment reports, forensic evaluations, progress notes, and the report of Dr. Stanzione.
Dr. Harris diagnosed W.Z. with antisocial personality disorder and alcohol dependence in partial remission, describing him as behaving impulsively, demonstrating poor decision making, and having an impaired understanding of relationships, with alcohol increasing his risks. Dr. Harris believed that W.Z. posed a high risk of sexually reoffending because he was unable to control himself in a highly structured outpatient setting. W.Z. scored a seven on the Static-99R and above a thirty on the PCL-R, indicating a high risk to reoffend. Dr. Harris's report concluded that W.Z. is
not particularly advanced, struggling with his antisocial attitudes and behaviors, his vulnerability to grandiosity, his inability to modulate the push to get involved with people which results in many boundary violations, his inability to withstand his substance abuse issues as well as his reluctance to get involved in treatment.
[W.Z] has failed his release under the conditions which were specified. In some ways it seems that he never had sufficient skills to adapt to the community with the supervision that was afforded to him. I am recommending that [W.Z.] be civilly committed as he does not have the skills necessary to be in the community.
[W.Z.]'s risk to sexually reoffend can be estimated by using actuarial instruments. His score of 7 on the Static-99R places him in a category of men who were at high risk to sexually reoffend when released from a prison. This underestimates his risk to sexually reoffend. His strong antisocial attitudes and behavior, his inability to
control his substance abuse, his inability to use treatment effectively, his impulsivity and grandiose strivings are risk factors which make him highly likely to sexually reoffend at this time.
Therefore, [W.Z.] remains a high risk to sexually reoffend and continues to meet the criteria for civil commitment under the NJ SVP statute.
Dr. Stanzione testified that she conducted a psychiatric evaluation of W.Z. and reviewed W.Z.'s police reports, parole reports, treatment records, progress summaries, and the diagnoses of other doctors. Dr. Stanzione diagnosed W.Z. with antisocial personality disorder with borderline and narcissistic features, and alcohol dependence. Dr. Stanzione testified that W.Z.'s personality disorder caused him to have serious difficulty controlling his sexual offending behavior such that he posed a high risk of reoffense unless committed to the STU for treatment. W.Z. scored a seven on the Static-99R, indicating a high risk to reoffend. Dr. Stanzione opined that treatment and parole supervision was insufficient for the time being.
In her report, Dr. Stanzione concluded:
Ultimately, it is recognized that [W.Z.]'s case is quite complex. Actuarially, his risk for recidivism is in the high range, with some mitigation due to treatment and supervision, but clearly poor internalization of treatment gains. There are other compelling immediate risk factors
that suggest an increased risk of sexual recidivism. These factors include alcohol/substance use, failure under supervision, using sex to cope, poor problem solving skills, and external stressors (father's health/relationship, unemployment). To some degree, the grandiosity initially evident when he met with this assessor in May has been stripped away and he appears to have heard his "wakeup call." However, it must also be recognized that this is a continual pattern for [W.Z.] and that he requires "wakeup calls" that are so extreme as to involve parole, local police, his treatment providers, and the STU for the gravity of his behavior to sink in. A common theme stated by all of those involved in [W.Z.]'s supervision is that he "doesn't get it." One has to question how short lived his recent "wakeup call" will truly be. It should also be highlighted that the behavior he was engaging in, substance use, has been identified by himself as a high risk and also noted by his treatment provider last year as a very high risk. It is understood that [W.Z.]'s offending history is somewhat complex in that he is not paraphilic. However, he is highly antisocial and impulsive with a poor ability to profit from consequences. While it is recognized that he has not acted violently in the community during his discharge, should he sexually recidivate, he has the capacity to act violently including choking his victim. Furthermore, he is most at risk to sexually recidivate when he feels rejected and he is out of control (i.e. under the influence) and he continues to engage in relationships that his support team and myself view as problematic and likely eliciting high risk emotions.
. . . .
[W.Z.] is highly likely to engage in future acts of deviant sexual behavior as defined by the SVP statute if he remains in the community at this time.
Dr. Lorah testified that he reviewed W.Z.'s most recent treatment report, one parole report, and the reports of Dr. Harris and Dr. Stanzione. Dr. Lorah agreed with the diagnosis of antisocial personality disorder but testified that W.Z.'s drinking incidents exhibited symptoms of Axis I alcohol dependence and not symptoms of his Axis II antisocial personality disorder. Dr. Lorah also agreed with a score of a seven on the Static-99R.
Dr. Lorah concluded that even if no conditions were in place, W.Z. would not be highly likely to sexually reoffend, but may be highly likely to return to substance abuse and commit a nonsexual offense. He testified that although W.Z. is "not perfect in treatment[,]" that does "not mean that he is a sexually violent predator[.]" He testified that W.Z. is not a "particularly violent individual[.]" Dr. Lorah concluded:
Although [W.Z.'s] violation was a clear error in judgment, this writer does not find his actions relevant to the presence of a mental health abnormality or personality disorder (i.e., unrelated to previously diagnosed Antisocial Personality Disorder) that pre-disposes him to sexual violence. Furthermore, the writer holds his violation does not significantly increase his risk for sexual violence above the "highly likely" statutory requirement. He was not accused
of illegal sexual behavior and appears solidly engaged in treatment. This writer also opines that [W.Z.]'s violation does not impact his likelihood for future compliance and he is in obvious continued need of sex offense specific and substance abuse treatment. [W.Z.] will do "anything" asked including making 90 AA meetings in three months. As a result, this writer feels, with a reasonable degree of psychological certainty, that [W.Z.]'s continued treatment needs can be effectively and adequacy [sic] met in the community.
On July 16, 2012, the court issued an oral decision ordering W.Z. to remain at the STU, finding "Dr. Harris's testimony to be very -- extremely credible and very forthright in -- in terms of his interest, his demeanor, very credible witness and knowledgeable." The court found Dr. Stanzione "to be very credible in terms of her interest, her demeanor, and . . . and her report[.]" The court found Dr. Lorah to be a credible witness but disagreed with his conclusion. The court found W.Z. to
suffer[] from antisocial personality disorder, that before he was released on conditional discharge two and a half years ago that he was highly likely to sexually reoffend if not confined, and that is still true.The court concluded that "the culmination of all this indicates that he is very difficult to supervise in the community. He's probably too difficult to supervise in the community because of his antisocial personality disorder, and that he is very highly likely to sexually reoffend if not confined to the STU."
He has been conditionally discharged for two and a half years, he's gotten into numeral -- numerous problems, is beyond -- been out of his GPS, he had a curfew violation. He has had relationships with two women, [resulting in] them complaining
to police or Parole, so that there was a no contact order.
Fortunately, [W.Z.] did -- did not contact them after the no contact order, but he's had problems, more problems since the last evaluation by Dr. Stanzione in 2011 where she warned him that any further problems could result in him going back to the STU.
He gets into problems with the police, high speed, over a 100 miles an hour in Vineland. He used alcohol, seven to ten bottles of cough medicine in April of 2012, gets a high reading.
After he -- he knew he was coming back for a hearing here, he used alcohol on June 7th, and that's a small amount, but we don't know exactly when he used the alcohol. When he came back at 9:30 at night, that's when he had a .01 reading when later by the -- the police in that town where he lives. So, -- and he's gotten into many different relationship with different women where he has used that to -- as a coping mechanism.
On appeal, W.Z. presents two points:
POINT ONE
THE TRIAL COURT ERRED IN ITS JUNE 22 RULING THAT W.Z. VIOLATE[D] CONDITIONS SUFFIC[I]ENTLY TO WARRANT HIS RETURN TO AN INPATIENT SETTING.
POTNT TWO
THE STATE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT W.Z. WAS HIGHLY LIKELY TO COMMIT A SEXUALLY VIOLENT OFFENSE IN THE FOR[E]SEEABLE FUTURE.
II.
"Review of a trial court's decision regarding a commitment hearing is extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (citing State v. Fields, 77 N.J. 282, 311 (1978)), certif. denied, 177 N.J. 490 (2003). The trial court's determination is given "'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). "[T]he ultimate determination of a registrant's risk of reoffense and the scope of notification is reserved to the sound discretion of the trial court." In re Registrant G.B., 147 N.J. 62, 79 (1996).
A.
W.Z. first argues that the court erred in finding that the State met its burden of showing he is likely to commit a sexually violent offense in the foreseeable future. We disagree.
The same standard "to support involuntary commitment of a sex offender under the Act . . . . applies for a committee who has been given a conditional discharge and is alleged to have violated it." In re Civil Commitment of E.D., 183 N.J. 536, 551 (2005). In either case, "'the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend.'" Ibid. (quoting W.Z., supra, 173 N.J. at 133-34).
At the initial recommitment hearing on June 22, 2012, the court found that "there's no question that the facts disclosed here show by clear and convincing evidence that there has been a significant violation of the conditional discharge order." However, "clear and convincing proof of a violation of a term of conditional discharge will not necessarily mean that the State has satisfied its burden to recommit." Ibid. Instead, "the State must establish by clear and convincing evidence that the committee is highly likely not to control his or her sexually violent behavior and will reoffend." Ibid.
Here, in addition to the violation of the conditional discharge, the court found
it's a significant enough relapse that the State has shown by clear and convincing evidence that it has the right to determine whether or not [W.Z.] should be recommitted by a full commitment hearing.
. . . .
I think it's a significant violation and I think it's one that can't be ignored, because all of his . . . offending was . . . around alcohol.
W.Z. does not contest his violations of some of the conditions of his discharge. He claims that these violations did not demonstrate that he was highly likely to commit a sexually violent offense in the future. W.Z. argues that Dr. Stanzione "could only cite to two incidents where W.Z. made women uncomfortable because of awkward attempts to start relationships and two incidents where he consumed alcohol but caused no harm otherwise." W.Z. only adds that the State "needed more evidence than presented to meet [its] burden." Moreover, he argues the court should agree with Dr. Lorah that though he may not have "behaved exactly to the letter of his conditional discharge, [his] behavior did not rise to a level which would require locking him up for fear of potential re-offense."
At the conclusion of the June 22 hearing, the court found that the violations were a significant enough relapse that the State has shown by clear and convincing evidence that a full commitment hearing is necessary. At the initial hearing, in addition to the two incidents which resulted in no-contact orders, there was further testimony as to W.Z.'s violations of his release conditions. New Jersey parole officers testified that W.Z. violated curfew by going to a nightclub despite explicit warnings of that prohibition. The court referenced W.Z.'s continued struggle with alcohol, supported by his admission of drinking excessive amounts of cough syrup. The court also noted that W.Z. continued to drink lemonade after learning it contained alcohol, then drove while intoxicated, resulting in a citation. The court found that these incidents involving alcohol were significant because W.Z.'s prior offenses also involved alcohol.
We are satisfied that sufficient evidence was presented to support the trial court's initial finding that the State had shown by clear and convincing evidence that a full commitment hearing was necessary. The court temporarily recommitted W.Z. pending the full hearing that occurred on July 12, 2012.
B.
W.Z. next argues that the State failed to prove by clear and convincing evidence at the July 12, 2012 hearing that he is highly likely to commit a sexually violent offense in the foreseeable future. Again, we disagree.
"The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act." W.Z., supra, 173 N.J. at 127 (citing N.J.S.A. 30:4-27.28). It requires a past "sexually violent offense." Ibid. It also requires that the person must "'suffer[] 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.'" Ibid. (quoting N.J.S.A. 30:4-27.26).
An individual may be considered to pose a threat to the health and safety of others if he or she were found, by clear and convincing evidence, to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.
[Id. at 130.]
W.Z. concedes, and the three experts agreed, that he suffers from antisocial personality disorder and alcohol dependence. However, he argues that the court erred in accepting the analyses by Drs. Stanzione and Harris connecting his behavior with his risk to reoffend.
Dr. Harris testified that W.Z. posed a high risk of sexually reoffending because he was unable to control himself in his already highly structured outpatient setting. Dr. Stanzione testified that W.Z.'s personality disorder caused him to have serious difficulty controlling his sexual offending behavior such that he posed a high risk of re-offense and that treatment and parole supervision were insufficient for the time being.
Dr. Lorah admitted that if no release conditions were in place, W.Z. may be highly likely to return to substance abuse and commit a nonsexual offense, but maintained that he would not be highly likely to sexually reoffend. Dr. Lorah did not find W.Z. to be a particularly violent individual and noted that he has not recently been accused of "illegal sexual behavior." This analysis ignores the two no-contact orders that were obtained by women who were made uncomfortable by W.Z.'s behavior.
Dr. Stanzione noted that W.Z. is most at risk to sexually reoffend when he feels rejected and is under the influence of alcohol. This is significant, as W.Z.'s prior sexual offenses were related to alcohol use. See W.Z., supra, 339 N.J. Super. at 556-57. Dr. Harris also opined that W.Z.'s alcohol use, feelings of inadequacy, and impulsivity were part of his sex offense cycle.
We note that Dr. Stanzione evaluated W.Z. after the two no-contact orders but before the alcohol incidents and other violations of release conditions occurred. She initially concluded that the two incidents were not enough to find W.Z. "'highly likely' to sexually recidivate[,]" although she was "extremely concerned." In her report, Dr. Stanzione warned W.Z. that "should he be found to engage in problematic, high risk, behavior again [she] would most certainly recommend he be returned to the STU." Clearly, Dr. Stanzione engaged in a cautious analysis before determining W.Z.'s likelihood to recidivate and W.Z. disregarded her warning.
The court found all three experts in this case to be credible, but did not agree with the conclusion of Dr. Lorah. The court analyzed W.Z.'s violations and his behavior since his release and concluded that he is "too difficult to supervise in the community because of his antisocial personality disorder, and that he is very highly likely to sexually reoffend if not confined to the STU."
We are satisfied that the record amply supports the court's determination, to which we owe "utmost deference" and may modify only where there is a clear abuse of discretion. J.P., supra, 339 N.J. Super. at 459. There has been no showing of such a clear abuse.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION