IN THE MATTER CIVIL COMMITMENT OF A.Z.G. SVP-114-00 v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3231-04T23231-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.Z.G. SVP-114-00

___________________________________

 

Argued October 3, 2005 - Decided

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-114-00.

Joan D. VanPelt, Assistant Deputy Public Defender, argued the cause for appellant A.Z.G. (Yvonne Smith Segars, Public Defender, attorney).

Mary Beth Wood, Deputy Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

A.Z.G. appeals from an order of February 28, 2005, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In accordance with an agreement of the parties, the appeal is to be determined on the record as supplemented by oral argument, but without briefs.

The question presented on appeal is whether the decision of the trial judge, determining by clear and convincing evidence that A.Z.G. is a sexually violent predator, is adequately supported by evidence in the record. A.Z.G. argues that the credible evidence fails to establish clearly and convincingly that he is highly likely to re-offend if conditionally discharged from the STU, and the State has failed to produce clear and convincing evidence that he is not entitled to a conditional release. A.Z.G. also argues that the trial judge erred in rejecting his conditional discharge plan, finding that it was inadequate because A.Z.G. does not have the means or ability to research and prepare a more detailed plan. A.Z.G. requests this court to reverse and remand with directions that the trial judge order the STU to commence preparing a conditional discharge plan for him, notwithstanding that he is only in phase two of his treatment.

The State's authority "to civilly commit citizens is an exercise of its police power to protect the citizenry and its parens patriae authority to act on behalf of those unable to act in their own best interest." In re Commitment of P.C., 349 N.J. Super. 569, 579 (App. Div. 2002). 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. In order "[t]o be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[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." Ibid. The trial court must be satisfied by clear and convincing evidence that such is the case at the time of the hearing. Id. at 132-34.

In 1983, A.Z.G. was convicted of one count of second-degree sexual assault and one count of first-degree aggravated sexual assault, and sentenced to imprisonment for an aggregate term of nine years. In 1995, A.Z.G. was again convicted of one count of second-degree of sexual assault, and sentenced to imprisonment for a term of ten years with three years parole ineligibility.

On or about August 28, 2000, the State filed a petition seeking his involuntary civil commitment pursuant to the SVPA. On February 1, 2001, an order was entered finding by clear and convincing evidence that A.Z.G. was a sexually violent predator and directed that he be committed to the STU, with a review to occur in one year. On March 4, 2002, February 24, 2003, and March 1, 2004, orders were again entered after review hearings stating that A.Z.G. continued to be a sexually violent predator and continued his commitment at the STU. A.Z.G. appealed from the three annual orders continuing his commitment to the STU, which were consolidated by this court on appeal, Docket Nos. A-1587-02T2, A-3386-02T2 and A-3506-03T2. Finding the first two orders appealed from were fully executed at time of oral argument, we limited our review to the order of March 1, 2004, and affirmed.

The hearing forming the basis of the present appeal was conducted on February 9, 2005, at which time the State presented testimony from Dr. Michael McAllister, a psychiatrist, and Dr. Eleni Marcantonis, a psychologist, and A.Z.G. presented testimony from Dr. Jeffrey Singer, a psychiatrist. A.Z.G. also introduced, at the time of the hearing, a one and one-half page proposed conditional discharge plan for him to be released from the STU into the community.

McAllister diagnosed A.Z.G with paraphilia NOS; personality disorder NOS, with narcissistic traits; and as having a history of alcohol, cocaine and opium dependence in institutional remission. McAllister testified that paraphilia is a mental abnormality that predisposes A.Z.G. to sexual violence; does not spontaneously remit because "it's part of the individual's sexual repertoire and [his/her] sexual identity;" and although substance abuse does not "create a new motivation to rape or coerce sex that did not exist absent the substance abuse", when it is present with paraphilia, substance abuse "certainly can lower inhibitions" and "interfere[] with an individual's judgment [and] . . . impulse control." McAllister determined that A.Z.G. was not "addressing the degree of violence and coercion involved in both of his offenses[,]" which indicated to the doctor that A.Z.G. "still remains at an early stage of his treatment." It was McAllister's opinion that A.Z.G. suffers from a mental abnormality or personality disorder which affects him emotionally, cognitively or volitionally so as to predispose him to sexual violence; that A.Z.G. has serious difficulty controlling his behavior; and that his risk of re-offending remains high.

Dr. Marcantonis is a member of the Treatment Progress Review Committee (TPRC), a committee comprised of four psychologists charged with assessing an individual's level of progress at the STU. TPRC reviews all available records concerning the committee and determines "what phase of treatment would be most appropriate according to that resident's level of participation at that time and progress."

Marcantonis testified that there are five phases of treatment for residents at the STU. Phase one commences when the individual first arrives and becomes familiar with the treatment program. Phase two is a "rapport building phase and . . . consists of when the resident starts to become internally motivated and realizes that a lot of his behaviors and attitude have to be changed." Phase three is the "core intensive phase of treatment." In phase three, the resident "generally takes the floor for longer periods of time and discusses [his/her] offenses in greater detail and at greater length." Phase four is the "maintenance phase of treatment in which the person sustains all treatment gains." Phase five is the
"transition phase in which the person starts to slowly transition back into the community through different visits and that lasts for longer periods of time." Marcantonis testified that in preparing the TPRC's report that they generally conduct an interview with the committee. In this matter, however, A.Z.G. refused to participate in the interview session.

Based on review of A.Z.G.'s treatment records, the TPRC recommended that A.Z.G. remain in phase two of the treatment program and not be elevated to phase three because there had been a decline in his motivation demonstrated by his failing to participate in therapy. The TPRC recommended anger management, arousal reconditioning, and substance abuse treatment.

Singer acknowledged that A.Z.G. has a personality disorder but opined that he is not highly likely to re-offend. It was Singer's opinion that the severity of the personality disorder and the mental abnormality suffered by A.Z.G. did not meet the criteria of the SVPA. He concluded that A.Z.G.'s risk to re-offend was at the low to moderate range and that with an appropriate discharge plan, A.Z.G. would not be highly likely to recidivate.

On February 28, 2005, Judge Freedman entered a comprehensive oral decision in which he found A.Z.G. continues to be a sexually violent predator under the SPVA and continued his commitment at the STU for an additional year. In his decision, Judge Freedman analyzed the evidence and fully explained why he accepted the opinion of Dr. McAllister and rejected the opinion of Dr. Singer. Judge Freedman also commented on the proposed discharge plan finding it inadequate, and that even if the plan were of more substance, he was of the opinion that A.Z.G.'s treatment level had not progressed sufficiently to justify a conditional discharge at the present time:

I am satisfied that [A.Z.G.'s] treatment level has not progressed sufficiently to . . . justify [or] . . . even consider a conditional discharge at this time. He [is] a sexually violent predator under the statute and under the cases. Obviously, if he could be released with conditions, I would do that. I have no interest in keeping anyone as a resident if he doesn't have to be.

But I [am] satisfied by clear and convincing evidence that his . . . level of treatment, his inability to deal with his offenses, . . . as I [have] described in the rest of my opinion is such that he can[not] be safely released on . . . a conditional discharge at this time.

Our review of a trial court's decision in a commitment hearing is a narrow one. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) certif. denied, 177 N.J. 490 (2003). We accord the "utmost deference" to the trial court's determinations, and can only modify the same "where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). We conclude that the record supports Judge Freedman's decision that A.Z.G. is a sexually violent predator who should continue his commitment at the STU.

Because we determined that the record supports Judge Freedman's decision that A.Z.G. is highly likely to re-offend if his commitment is not continued, we cannot order the STU to commence the process of preparing a conditional discharge plan. "Under E.D., if the person is a sexually violent predator conditional discharge is not an option. Only if the person is no longer likely a sexually violent predator may the judge consider conditional discharge." In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). Therefore, we deny A.Z.G.'s request that we remand the matter with directions that the trial judge order the STU to commence preparation of a conditional discharge plan at this time.

It is for A.Z.G. to "demonstrate at any future hearing that he can be released on a conditional discharge with a reasonable likelihood of safety." Id. at 500.

As the level of dangerousness posed by the committee decreases, he should be afforded the opportunity to demonstrate his ability to cope responsibly with the stresses of normal everyday life with diminishing degrees of supervision. Only after the committee has progressed to the point where he has proven that he can function in normal society with minimal supervision should consideration be given to unconditional release.

[State v. Fields, 77 N.J. 282, 303 (1978) (emphasis added).]

Here, based on the record below, Judge Freedman concluded that A.Z.G. has not yet reached that stage in his treatment. We agree.

 
Affirmed.

A committee is given a middle initial of "X" or "Z" if he/she does not have a middle name. We note that the Notice of Appeal identifies the appellant/committee as "A.X.G." The appendix of the appellant/committee and the transcripts of the proceedings below, however, refer to the appellant/committee as "A.Z.G." Consistent with the appendix and transcript, the court shall refer to the appellant/committee as "A.Z.G."

Paraphilia is defined as an "aberrant sexual activity; sexual deviation; expression of the sexual instinct in practices which are socially prohibited or unacceptable . . . ." Dorland's Illustrated Medical Dictionary, 1135 (25th ed. 1974).

"Not otherwise specified."

In re Civil Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002).

(continued)

(continued)

2

A-3231-04T2

RECORD IMPOUNDED

October 17, 2005