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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5656-03T25656-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.Z.L. SVP-150-01

__________________________________

 

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-150-01.

Patrick Madden, Assistant Deputy Public Defendant, argued the cause for appellant D.Z.L. (Yvonne Smith Segars, Public Defender, attorney).

Jill Grace Viggiano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

D.Z.L. appeals from an order of May 19, 2004, 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.

On appeal, D.Z.L. argues that the decision of the trial judge determining that he is a sexually violent predator is not adequately supported by clear and convincing evidence in the record. D.Z.L. also contends that the trial judge erred by not considering the opinions of two psychologists contained in their Adult Diagnostic and Treatment Center (ADTC) pre-sentence evaluation reports, wherein the psychologists had concluded that D.Z.L. was not eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. D.Z.L. requests that this court reverse and remand with directions that the trial judge order the STU to commence preparing a conditional discharge plan for him. Because we find the decision of the trial judge is supported by credible evidence in the record, we affirm.

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.

On or about January 17, 2001, the State filed a petition seeking D.Z.L.'s involuntary civil commitment pursuant to the SVPA. On September 21, 2001, an order was entered, finding by clear and convincing evidence, that D.Z.L. was a sexually violent predator and directed that he be committed to the STU, with a review to occur in one year. D.Z.L. appealed from the order of September 21, 2001, arguing that the trial court erred in finding that D.Z.L. met all statutory criteria of a sexually violent predator in need of custody, care, and treatment and declined to order a conditional discharge or a release from the STU into the community. We affirmed. In re Civil Commitment of D.Z.L., No. A-1185-01T2 (App. Div. Nov. 19, 2003).

The predicate offense involved D.Z.L.'s guilty plea and resultant conviction on February 20, 1987, of first-degree sexual assault. D.Z.L. also pled guilty to second-degree burglary. D.Z.L. was sentenced to an aggregate term of twenty-five years imprisonment with five-years parole ineligibility. On January 23, 1996, D.Z.L. was released on parole. On February 19, 1997, he violated his parole by testing positive for drug use and was returned to prison to complete his sentence. The details of the predicate offense, together with D.Z.L.'s history of other sexual crimes relied upon by the State to establish that he is a sexually violent predator, are set forth in the decision from his prior appeal.

The hearing which forms the basis of the present appeal was conducted on May 17, 2004, at which the State presented testimony from Dr. Luis Zeiguer, a psychiatrist. Zeiguer testified that part of his normal procedure in preparing a report for a STU hearing is to conduct a personal interview with the committee, but D.Z.L. refused. As such, Dr. Zeiguer prepared his report relying upon all available treatment records and STU progress reports, which included pre-sentence psychologists' reports prepared by Drs. Ginsberg and Gnassi at the ADTC under the Sex Offender Act.

Zeiguer diagnosed D.Z.L. with paraphilia NOS, non-consent; personality disorder with anti-social and narcissistic features; and as having a history of alcohol and polysubstance abuse. Zeiguer determined that although D.Z.L. is attending and participating in his process group sessions, that he has not significantly reduced his risk to re-offend because he continues to minimize his past sexual offenses; has not been fully participating in substance abuse counseling and has refused counseling for anger management. Concerning his diagnosis of paraphilia NOS, Zeiguer described D.Z.L. as: "He rapes or tries to rape acquaintances and [strange] women and he has a personality disorder that makes him insensitive towards the rights of others, and so he perceives other people as prey." It is Zeiguer's opinion that "the personality disorder . . . that he has with anti-social features . . . combined with his propensity to force himself sexually . . . makes him a formidable risk." When asked to characterize the risk, Zeiguer responded: "as extremely high."

The Treatment Progress Review Committee (TPRC), a committee comprised of several psychologists charged with assessing an individual's level of progress at the STU, prepared its annual review report on May 16, 2004. It was the committee's opinion that D.Z.L. had not adequately addressed his risk factors of drug and alcohol use; unresolved family of origin issues; and his deviant arousal patterns. The TPRC recommended that D.Z.L. be placed in Phase Three treatment at the STU and that he complete the following treatment modules: 1) anger management; 2) personal victimization; 3) relapse prevention; and 4) substance abuse.

After reviewing all of the treatment records and reports introduced at the hearing, Judge Freedman rendered a comprehensive, oral decision on May 19, 2004, in which he found Dr. Zeuguer's testimony credible:

The testimony of Dr. Zeiguer I think is exactly on the money to use a phrase. I think he has identified that [D.Z.L.] does have psychopathic traits, that he is glib and very persuasive verbally, that he has made some progress but that he has not dealt with his deviant arousal. I think the nature of the crimes, the escalation in the crimes, the fact that he had a relationship during the first two crimes, the fact that he continues . . . to the very present to misrepresent the nature of the victims, who they were show[s] that he has really not progressed much with regard to the sexual aspects of his treatment.

. . . .

I think that as I said before, this Doctor in this particular case [he]. . . has gotten this case exactly right. His testimony was basically consistent with that conclusion. Some of the - - he did indicate . . . that he agreed that he's doing well in treatment, that he attends and has a positive attitude, and that he may be able to address his issues in the future. But that he hasn't done it sufficiently at this point to reduce his risk.

. . . .

And his opinion was that . . . [D.Z.L.] has a serious difficulty in controlling his behavior, that he is a formidable risk, an extremely high risk were his, were his words.

So that after reviewing the evaluations of the psychiatrists who did the certificates, the psychologists and the psychiatrists who evaluated him the first time and the different psychologists - - psychiatrists rather who evaluated him the second time, and again another . . . psychiatrist who evaluated this time, all of whom came up with basically similar diagnoses, I accept Dr. Zeiguer's opinion, I credit it and I find that [D.Z.L.] does in fact suffer from a personality disorder and a mental abnormality in the form of a paraphilia that they affect all three of his areas and that his record clearly shows that they predispose him to engage in acts of sexual violence.

. . . .

So, there's been no, there's been no release plan presented here. This Court does not feel under this present circumstances that a set of conditions could be made which would enable him to be released on conditions. Under the statute 30:4-27.32, the Courts must find that a person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community, et cetera.

He[] [has] shown great hostility to drug treatment which he clearly needs. Even his own expert in the first hearing said that if he were released without drug treatment, he would be a serious risk and I don't think there's any question about it.

So I'm satisfied he meets all the criteria . . . [by] more than clear and convincing evidence . . . . So I don't think there's any question that he continues to be committable here. He has not made the progress required since his last hearing to justify any change in his status so I continue his commitment.

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 D.Z.L. is a sexually violent predator who should continue his commitment at the STU.

In reaching our decision in this matter, we considered but rejected D.Z.L.'s contention that the trial judge erred by not considering the opinions of the psychologists contained in the ADTC diagnostic pre-sentence evaluation reports where the psychologists had concluded that D.Z.L. was not eligible for sentencing under the Sex Offender Act. A trial court's failure to consider a psychologist's conclusion in an ADTC evaluation report that the individual's conduct was not "characterized by a pattern of repetitive, compulsive behavior," N.J.S.A. 2C:47-3a, does not constitute error. See In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 222-25 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005) (holding that the SPVA and the Sex Offender Act "employ[] different definitions[,] and [have] different criteria for their application"). Although a trial court is not required to accept a conclusion of an expert contained in an ADTC evaluation report, the court and experts testifying at a commitment hearing under the SVPA may consider the substance of the ADTC evaluation report. Id. at 224.

Affirmed.

 

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."

(continued)

(continued)

9

A-5656-03T2

RECORD IMPOUNDED

October 26, 2005