IN THE MATTER CIVIL COMMITMENT OF R.L.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1588-02T21588-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.L.D.

____________________________

 

Argued November 1, 2005 - Decided November 18, 2005

Before Judges Coburn, Collester and

S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County

SVP-3-99.

William F. Culleton, Jr., Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Culleton, of counsel and on the brief).

Jill Grace Viggiano, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Viggiano and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

R.L.D. appeals the order of November 12, 2002, continuing his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38.

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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record and considering argument of counsel, we are satisfied that the State has met its burden in this case.

R.L.D. was first convicted of rape in 1969. He was incarcerated and placed in the Adult Diagnostic and Treatment Center (ADTC). He appeared to have made considerable progress in treatment at the ADTC and was paroled in August 1978. But in May and July 1979, he committed two more rapes. As a result, in 1980 he pled guilty to armed rape, robbery and threat to kill, and was again incarcerated and sent to the ADTC. After he had served nineteen years of his twenty year sentence, the State sought to commit him to the Special Treatment Unit (STU) pursuant to the SVPA. After a hearing in October 1999, he was committed to the STU. While at the STU, he refused treatment until 2000, and had fifteen institutional infractions, two of which involved actual or threatened assaults on corrections officers.

This appeal concerns the outcome of R.L.D.'s most recent review hearing held on October 11 and 12 and November 12, 2002. That review hearing resulted from a consent order entered on August 16, 2002, in which the State and R.L.D. agreed that the STU would prepare a discharge plan for R.L.D. and would "endeavor to arrange for furlough visits" for him; if the furlough visits did occur the matter would be reviewed on November 8, 2002, but if furloughs were not arranged or if the Clinical Assessment Review Panel (CARP) or the Resident Release Committee objected to the discharge plan, R.L.D. would have a review hearing on October 10, 2002.

On this appeal, R.L.D. contends that he has made sufficient progress in therapy to justify his release, and that the State failed to prove by clear and convincing evidence that he continues to present a high risk of reoffending if he is released. He also contends that both the State and the trial judge placed undue emphasis on an incident in which he brushed past a female guard and then went on a hunger strike after she accused him of touching her with sexual intent. His brief raises the following issues:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING CURRENT LACK OF CONTROL AND HIGH LIKELIHOOD TO REOFFEND, BASED UPON A RECORD THAT FAILED TO RISE TO THE LEVEL OF CLEAR AND CONVINCING EVIDENCE.

A. This Court Should Assess the Evidence According to the Stringent "Clear and Convincing Evidence" Standard of Proof.

B. The State's Evidence Fell Below the Benchmark Set in G.G.N.

1. Dr. Gnassi

2. Dr. Berger

3. Treatment Team Members Rebutted the State's Witnesses, Further Reducing the Weight of The State's Evidence.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY RELYING UPON DR. BERGER'S OPINION TESTIMONY, WHICH WAS A MERE SUMMARY OF HEARSAY FROM A COMMITTEE THAT HAD NOT TREATED R.L.D.

A. The Trial Court Denied R.L.D. His right to Confront the Witnesses Against Him by Relying upon Dr. Berger's Testimony.

B. The Trial Court Abused its Discretion by According Dispositive Weight to the CARP Committee Opinions, Contrary to the Legislative Policy Disclosed in the SVPA.

POINT III: THE TRIAL COURT ABUSED ITS AUTHORITY BY USING THE COMMITMENT PROCEEDINGS TO PUNISH R.L.D.'S PROTEST OF UNFAIR PUNISHMENT METED OUT TO HIM BY THE STU.

POINT IV: THE TRIAL COURT ABUSED ITS AUTHORITY BY REFUSING TO REVIEW THE DISCHARGE PLAN AND PHASE DESIGNATION ASSIGNED BY THE CARP TO R.L.D.

We find no merit in these contentions, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Perretti's oral opinion of November 12, 2005. We add the following comments.

At the heart of this case is a disagreement between R.L.D.'s treatment team and the CARP that oversees discharge recommendations from the STU. We pause here to emphasize that no one who testified at the hearing, either for the State or for R.L.D., expressed the view that he was ready to be released. Rather, the issue is whether he was ready to be placed in phase four of treatment, which would permit him to have furloughs in the community, with very gradual progression to phase five, successful completion of which would result in his supervised release. R.L.D.'s treatment team opined that he had made enough progress in therapy to warrant placement in phase four, with limited furloughs. The STU's Treatment Progress Review Committee took a somewhat more guarded view of R.L.D.'s progress, but also recommended that he be moved into phase four. The CARP concluded that the STU staff was taking an over-optimistic view of R.L.D.'s progress in light of his entire institutional history, his history of pretended cooperation and progress at the ADTC followed by violent recidivism soon after release, his numerous institutional infractions at STU, and the fact that he had only recently begun to show such significant progress.

At the hearing, the State presented testimony from Dr. Gnassi, a psychiatrist who was familiar with R.L.D., having interviewed and evaluated him several times over the years. Most recently, Dr. Gnassi had evaluated R.L.D. on August 2001 and had also interviewed him shortly before the hearing. Dr. Gnassi diagnosed R.L.D. as having paraphilia and antisocial personality disorder, as well as a history of alcohol and substance abuse. He testified that, although R.L.D. had made some progress in therapy, he continued to present a high risk of reoffending if released. He cited R.L.D.'s reaction to the incident with the female officer (going on a hunger strike and remaining in RAP for a month) as evidence that R.L.D. still had not fully addressed his problems of anger and his sense of "entitlement." As Dr. Gnassi explained, "because he feels entitled to do what he wants to do, when he wants to do it, and if sexual thoughts or feelings come up, he could more likely than not act upon those again . . . because of his feelings of entitlement and anger."

Dr. Berger, testifying on behalf of the CARP, explained, among other things, the importance of the incident with the female officer and R.L.D.'s response to the incident. She explained that R.L.D. is a "pervasively angry rapist," which means that his motivation for rape is anger:

[T]hat attitude of righteous self indignation, and entitlement, and how dare anybody accuse me of this, is exactly the high-risk factor for somebody like [R.L.D.] for committing another offense, that somehow they feel entitled or . . . how could . . . any woman possibly think that it was a problem for me to brush up against them.

In light of his history of rapes, as well as physical assaults on officers at the STU,

there's multiple reasons why this officer would be upset and concerned about him brushing up against her . . . and . . . if he really doesn't get it as to why any officer would be concerned about this . . . this really speaks to this kind of very egocentric view of the world to not understand . . . what the problem is. The problem isn't about whether or not it was sexual. It's whether or not he's dangerous.

On the issue of dangerousness, Dr. Berger further explained that R.L.D. had been institutionalized for many years, but he also had many infractions over the years. And his reaction to the incident with the officer, spending "a month in RAP refusing to speak to the RAP team, going on hunger strike, and then only being able to get transitioned out of RAP by being provided extra services, which involved individual therapy," showed that he still had a high risk of reoffending, particularly since "his primary risk factor for reoffense is his rage and his . . . acting out of this very wounded sense of self."

Dr. LoBiondo was called to testify for R.L.D. She had interviewed him twice as part of a clinical assessment at the STU. While she testified on direct examination that he presented a moderate risk, she admitted on cross-examination that she was not recommending that he be discharged and did not have an opinion regarding "how to predict how likely he is to reoffend under the statute." She stated that in her report she had "not attempted to represent him as someone who's ready for discharge," but that it was not her role to provide such an opinion, nor was it her role to evaluate whether he presented a high risk or a moderate risk to reoffend. She agreed that he suffered from paraphilia and antisocial personality disorder; she concluded that he was not a psychopath based on her re-scoring of a test that he had taken but that she had not administered to him, and based on her interviews with him.

Dr. Waldron Stanislaw testified that she had been treating R.L.D. in group therapy since October or November 2000 and in individual therapy since the RAP incident in December 2001. She testified that he had made considerable progress since December 2001. She noted that he had improved in terms of finding acceptable ways to express anger and had gained greater insight into the reasons for his past offenses. She was not asked to express an opinion as to whether or not he should be discharged.

Judge Perretti stated her conclusions as follows:

Given the nature of the offending in the past, the repetitive crimes, the nature of the crimes, the violence of the crimes, the long period of time during which there was little or no progress, the sudden, extraordinary progress in such a small length of time is deceptive, in view of the respondent's past successful completion at ADTC, with almost immediate violent repetition of sex offense, elevated sex offense, one has to be exceedingly careful with [R.L.D.]. . .

Whether he is a tier two or a tier four going onto tier five is immaterial to my opinion that the respondent continues to be a sexually violent predator. The testimony of Dr. Gnassi is clear and convincing. [R.L.D.] continues to be a psychopath. He continues to have an antisocial personality disorder.

He has a history of repetitive, serious sex offenses. He has a history [of] recidivating after successful . . . sex offender treatment. He demonstrates, as recently as last December and January, a person who was pretty much out of control, acting against his best interest, asserting his entitlement, regardless of the rights of others.

The diagnosis has been made, and I find that the respondent suffers from abnormal mental condition and personality disorders, which predispose him to commit sexually violent acts because of their impact on his emotional, volitional, and cognitive capacities.

I find he continues to have substantial problems with self control, and for the reasons I've stated, based on the testimony that I heard, is highly likely to recidivate, if not confined for further care and treatment.

To summarize, this case presented the trial judge with good faith disagreements among experts over the state of R.L.D.'s progress in treatment. The trial judge found the State's evidence, especially Dr. Gnassi's testimony, to be more credible than R.L.D.'s evidence, and she explained the reasons for her credibility determinations. That is a role uniquely vouchsafed to the trial court. We find no merit in R.L.D.'s contentions that her decision was based on inadmissible hearsay or that she sought to "punish" R.L.D. for overreacting to the incident with the female officer. That incident raised legitimate treatment issues and was only one factor in her decision, which relied heavily on testimony from Dr. Gnassi, a psychiatrist who was familiar with R.L.D. and who had interviewed him recently.

Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We find no abuse of discretion here.

Unlike In re Commitment of G.G.N., 372 N.J. Super. 42 (App. Div. 2004), on which R.L.D. relies, in this case the trial judge heard testimony from the patient's treating doctors as well as from the State's examining doctor, and she had the opportunity to judge the credibility of their testimony firsthand rather than relying on included hearsay in expert reports. Further, unlike G.G.N., whose institutional infractions consisted of minor matters such as illicit possession of toilet paper, R.L.D.'s institutional violations included assaults on STU staff. And unlike G.G.N., he had a documented history of recidivism after treatment. The record is sufficient to support Judge Perretti's determination to continue R.L.D.'s commitment. We find no abuse of discretion in this case.

 
Affirmed.

We do not reach the issue of the trial court's authority with respect to R.L.D.'s treatment level (whether he should be in phase two or phase four), because he did not raise that issue at the hearing, and in fact his counsel declined to raise the issue.

(continued)

(continued)

12

A-1588-02T2

RECORD IMPOUNDED

November 18, 2005