IN THE MATTER CIVIL COMMITMENT OF G.A.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6429-04T26429-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.A.G., SVP-27-99.

_______________________________________

 

Argued December 7, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-27-99.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

G.A.G. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of July 29, 2005, that continues his commitment after an annual review required by N.J.S.A. 30:4-27.35. In accordance with an agreement of the parties, this appeal is to be determined on the record as supplemented by oral argument, but without briefs. At argument G.A.G. contended that the evidence was inadequate to support his continual commitment. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of July 29, 2005.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. Release subject to conditions is appropriate if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only 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)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

G.A.G. was temporarily committed by order dated January 9, 1999. That order was entered at the end of G.A.G.'s sentence for aggravated sexual assault. That conviction was based upon his anal penetration of the fifteen-month old daughter of his cousin. G.A.G. plead guilty to that crime on August 18, 1992. He served his sentence at the Adult Diagnostic Treatment Center. This crime was not his first conviction based upon a sexual crime committed against a child. In 1985, he was convicted of kidnapping and sexual abuse of a six-year old child. In addition, he has acknowledged committing other sexual crimes against children for which he was not prosecuted. While his account was not consistent, he claimed as many as ten to eleven child victims, some of whom were boys and others girls. He also acknowledged that he had considered killing a six-year old girl who was the victim of one of his sexual assaults. A judgment of commitment pursuant to the SVPA was entered on March 2, 2002.

Prior orders continuing G.A.G.'s commitment after annual review were entered on October 23, 2000, May 30 and September 10, 2001, September 6, 2002, February 10, 2003, January 29, 2004 and January 12, 2005. As authorized by statute, several of the hearings on his continued commitment were scheduled at intervals of less than one year. N.J.S.A. 30:4-27.35.

The hearing that preceded entry of the order that we review on this appeal was held on July 29, 2005. Dr. Marcantonis and Dr. Apolito testified for the State. G.A.G. did not present any testimony.

Dr. Marcantonis is a member of the Treatment Progress Review Committee (TPRC). The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU. The TPRC met to consider G.A.G.'s progress on February 16, 2005.

The TPRC interviewed G.A.G. on July 21, 2005. He admitted that he had violated institutional rules by engaging in sexual conduct with another resident of the STU six months earlier and by engaging in sexual conduct with another resident in 2003 in exchange for drugs. The TPRC also reviewed notes provided by G.A.G.'s treatment team at the STU and consulted with two members of the that team. Although G.A.G. suffers from Hepatitis C, he acknowledged that he engaged in sexual contact without protection.

Dr. Marcantonis completed the TPRC's report on February 28, 2005. The TPRC accepted the recommendation of G.A.G.'s treatment team, i.e., that he remain in phase two of the STU's five-phase program. As Dr. Marcantonis explained:

[G.A.G.'s] criminal history when it comes to his sexual offenses was quite severe. He had contemplated killing one of his victims. I believe it was a six-year old girl. In light of that, we really would want [G.A.G.] to be real knowledgeable on his relapse prevention and on his sexual offense cycle, and to do whatever he needs to do in treatment to really know that cycle well, and then to really practice intervening when he feels himself getting involved in any negative situations . . .

. . . [He] appears, at least for now, to be in a position where he is open to learning and . . . listening. So, we would just hope that we see that consistent over some significant period of time.

. . . .

. . . [He] appears to be doing pretty well in substance abuse, and he has not refused any urine samples that I'm aware of. So, he's complying with that substance abuse program here.

. . . .

. . . With some residents, when they have maybe one lapse, one lapse a long time ago at A.D.T.C., that would be a lot better than someone who has had so many lapses, especially someone who has lapses here.

Based on the available records and its interviews, the TPRC recommended that G.A.G. repeat modules on "arousal reconditioning" and "relapse prevention." The TPRC concluded that G.A.G. was not yet "using the relapse prevention strategies" that he had learned and "arousal reconditioning" was important "so he could really know what he is doing, have these strategies . . . at his fingertips . . . to use when" needed.

Dr. Apolito, a psychiatrist, testified about G.A.G.'s diagnosis and risk level. Dr. Apolito's diagnosis was based upon his recent assessment of G.A.G., a prior assessment he had performed, and review of G.A.G.'s treatment records. When G.A.G. met with Dr. Apolito, he admitted, as he had in a past interviews with another psychiatrist, that he experienced additional arousal when his fifteen-month old victim screamed in pain. With respect to his victims, G.A.G. told Dr. Apolito that he feels empathy inside of himself but cannot express it because of fear that it will cause him to breakdown. Dr. Apolito was concerned that G.A.G.'s A.D.H.D. and possible bipolar condition might be interfering with his ability to derive the full benefit of the programs offered at the STU.

Dr. Apolito diagnosed G.A.G. as suffering from pedophilia with no gender preference, sexual sadism, poly-substance dependence and adult type A.D.H.D. In addition, Dr. Apolito saw indications of bipolar disorder in a hypomanic stage and recommended either ruling out or treating him for that condition as well. He concluded that G.A.G.'s conditions presented serious difficulties for him in controlling his sexually violent behavior, and that he was highly likely to reoffend if released without additional treatment. His opinions were given within a reasonable degree of medical certainty.

The evidence presented amply supports Judge Perretti's conclusion that "clear and convincing proof [demonstrated that G.A.G.] suffers from abnormal mental conditions and personality disorders that adversely influence his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexually violent acts." Her findings that G.A.G. "has serious difficulty . . . controlling his sex offending behavior" and "that it is highly likely that he will recidivate if not continued for further care and custody in order to protect the public" are consistent with the clear and convincing evidence. See W.Z., supra, 173 N.J. at 132.

We make two additional observations. First, we note that there was no evidence of a plan for conditional release adequate to reduce the risk posed by G.A.G. to a level below the "highly likely" standard required for continued commitment. J.J.F., supra, 365 N.J. Super. at 501-02. Second, we note that the STU's efforts to address G.A.G.'s A.D.H.D. and bipolar disorder, which the State's expert believes may interfere with his ability to benefit from STU programs, should be considered in subsequent proceedings.

Affirmed.

 

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

9

A-6429-04T2

RECORD IMPOUNDED

December 21, 2005