1345-05T2 IN THE MATTER OF CIVIL COMMITMENT OF L.B.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 1345-05T2A-1345-05T2

IN THE MATTER OF CIVIL

COMMITMENT OF L.B.R.,

SVP # 99-00.

 

Argued February 6, 2006 - Decided February 15, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

SVP No. 99-00.

Patrick Madden, Deputy Public Defender,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General,

argued the cause for respondent (Zulima

V. Farber, Attorney General, attorney).

PER CURIAM

L.B.R. appeals from a judgment entered October 18, 2005, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, ordering his continued commitment to the Special Treatment Unit (STU) for custody, care and treatment. We affirm.

We briefly summarize the procedural history and relevant facts. In November 1987, two young females were with L.B.R. in his automobile. He touched one the females on the inner thigh and promised her money for sex. L.B.R. was arrested and charged with criminal sexual conduct, terroristic threats and endangering the welfare of a child. He pled guilty to the endangering charge and was sentenced to eighteen months in jail.

L.B.R. was also arrested in June 1980 and charged with aggravated sexual assault, based on allegations that he penetrated his twelve-year old niece with his finger. He was convicted of sexual assault and received three-years probation.

In addition, on at least five occasions, in the period from April to September 1992, L.B.R. coerced a fourteen-year old girl to have sexual intercourse with him. He was arrested in September 1992 and charged with one count of sexual assault and one count of endangering the welfare of a child. On January 24, 1994, L.B.R. entered a guilty plea to sexual assault. L.B.R. was sentenced to nine years in prison with a three-year period of parole ineligibility.

L.B.R. was scheduled for release from prison in July 2000, and the State filed a petition on July 5, 2000 seeking his commitment under the SVPA. The court entered an order of temporary commitment on July 11, 2000 and a final hearing was scheduled for July 31, 2000. With L.B.R.'s consent, an order was entered on September 18, 2000 continuing his commitment.

An initial review hearing was held on March 19, 2001 and, on that date, the judge ordered L.B.R.'s continued commitment. A review hearing was held on December 6, 2001 and an order was entered on that date providing for L.B.R.'s continued commitment. Another review hearing was held on June 5, 2002 and L.B.R.'s commitment was continued. The next review hearing took place on November 20, 2003 and an order was entered on that date continuing L.B.R.'s commitment. L.B.R. filed an appeal from that order. Another hearing took place on November 5, 2004 and an order was entered on that date, which provided for L.B.R.'s continued commitment. L.B.R. also appealed from that order. L.B.R.'s appeals from the November 20, 2003 and November 5, 2004 orders were consolidated and, in an opinion filed June 27, 2005, we affirmed. In the Matter of the Civil Commitment of L.B.R. - SVP-99-00, Docket Nos. A-2231-03T2 and A-1504-04T2 (App. Div. June 27, 2005).

At the hearing of October 18, 2005 before Judge Serena Perretti, the State presented evidence from Arnaldo Apolito, M.D., who is board certified in general and forensic psychiatry. Apolito prepared a report dated October 14, 2005, in which he opined that L.B.R. "remains at high risk of committing violent" and "deviant sexual offenses" were he released from the STU "because he lacks the cognitive, motional and emotional capacity to curb his urges."

Apolito testified that, in the year since L.B.R.'s past review, his attendance at treatment had been satisfactory but his participation had been poor. His participation in sex offender treatment had "significantly declined." The notes of the treatment team indicated that L.B.R. had been "minimal silent" in these group sessions. In addition, his participation in substance abuse treatment had been "minimal to none." Apolito additionally testified that the treatment team had recommended that L.B.R. advance to phase three treatment, but the Treatment Progress Review Committee (TPRC) determined that he should remain in phase two because he had made "little progress" and had "little motivation."

Apolito diagnosed pedophilia (attracted to female), alcohol dependence and a history of major depression or psycho-effective disorder. In addition, Apolito diagnosed a personality disorder, not otherwise specified (NOS), with anti-social features. The doctor noted that L.B.R. suffered from coronary artery disease, with angina, cholesterol problems, anemia and hypertension. He had a history of myocardial infarction.

Apolito explained his diagnosis of major depression and major psycho-effective disorder. He noted that, before his commitment, L.B.R. tried to commit suicide. L.B.R. had also reported episodes of auditory hallucinations. At the STU, L.B.R. had experienced depression. Apolito stated that L.B.R.'s lack of interest in treatment, his statements about the fear of death and his facial expression indicated that L.B.R. was experiencing depression "at this point." Apolito also asserted that depression, hopelessness and a lack of motivation made it difficult for a sex offender like L.B.R. to make progress in treatment. In addition, depression could increase the risk of substance abuse if the offender were released.

Apolito discussed his diagnosis of pedophilia. He stated:

Well, his main interests have been . . . children. . . .[T]he predicate offense was committed against a 14 year old girl who's, you know, just a little bit above the age level that the D.S.M. IV places for the diagnosis of pedophilia. Other doctors have made the diagnosis of paraphilia N.O.S. Some of them have made a diagnosis of paraphila N.O.S. with rule out pedophilia. But I felt by the review of the records that his main attraction was children under the age of 13.

Apolito added that, even if the evidence regarding the age of the victims was inconclusive, a diagnosis of paraphilia NOS would be appropriate in the circumstances.

Apolito asserted that pedophilia or paraphilia NOS is not a disorder that will remit. Treatment is required. He stated:

One first has to gain the insight that one is a sexual offender, that one has this severe mental abnormality which is very -very strong and very hard to - to control and has to go to the steps of deepening this sensitivity and become attuned to the . . . deviant sexual arousal . . . [and] be able to resort to whatever means one has learned to avoid acting out . . . on the urge.

Apolito was asked whether L.B.R. has learned those strategies and techniques and he replied, "He has not shown that he has."

Apolito also explained his diagnosis of personality disorder NOS, with anti-social features. He said that, according to the DSM IV, a personality disorder is a complex of "distorted feelings and notions which lead a person to a behavior which is not consistent with the moral and legal parameters of society in which one lives."

Apolito added that L.B.R.'s long history of crimes, which span from 1968 to 1992, shows a "personality disorder that is ingrained in the personality and it's not responsive to warning, punishment, advice, counseling and so on." Those crimes include burglary, theft, contributing to the delinquency of a minor, forgery, damage to property, and assault. Apolito said that L.B.R.'s extensive criminal history is relevant to the risk of sexual re-offense because the traits are ingrained in the personality.

Apolito opined that L.B.R. was at a high risk of committing future sexual offenses unless confined in a facility for treatment. The doctor asserted that L.B.R. has not shown any significant change in his motivation to develop the strategies necessary to prevent a relapse.

The State also presented testimony from Manuel Iser, Psy.D., a clinical psychologist who testified as to the findings of the TPRC, which issued an annual review report dated June 2, 2005 concerning L.B.R.'s treatment. Iser noted that the treatment team had recommended phase two for L.B.R.'s treatment. He explained the difference between phase three and phase two treatment:

Well, phase three, they - here at the S.T.U. they call it the core phase of treatment[.] [This] is when the resident does the core work, expands on his sex offense cycle, relapse prevention plans starts, really getting into his autobiography. Phase two, you're pretty much coming to terms with being committed; you know, things that carry over from phase one. You're staring to learn about your sex offense cycle, which obviously some of the therapists in this report felt that he still needed help and they needed to help him on. He's starting to learn what relapse prevention plan is and what type of techniques you need to employ to get a good relapse prevention plan.

And you're getting, you know, engaged in therapy. You're staring to learn about therapy. You're - probably a lot of these men who have been here never had therapy before. So, this is a very crucial part of phase two, to learn the intricacies of therapy. You know, wait your turn, speak, you know, show some insight, show some empathy. It's - obviously, you need it prior to get to phase three. You have to expand on these things in phase two.

L.B.R. presented no testimony at the review hearing. However, in his closing argument, L.B.R.'s counsel asserted that L.B.R. no longer was a sexually violent predator in need of commitment under the SVPA. He asserted that L.B.R.'s victims were all over twelve years of age and, therefore, Apolito's diagnosis of pedophilia "may not be the proper diagnosis in this case." Counsel asserted that his client was "doing better" in treatment. L.B.R. is attending treatment when he is physically able to do so but counsel conceded that L.B.R.'s participation in therapy "is not as good as it can be." He emphasized that L.B.R. has completed a number of treatment modules and he "does have some interest in resolving the issues that he has."

Counsel additionally pointed out that in some ways, L.B.R. has reduced his risk factor. According to the Static 99 actuarial, L.B.R.'s risk factor is below a 50% threshold

statistically. On this basis, counsel asserted that L.B.R. no longer is "highly likely" to commit sexual offenses in the future "based on the progress he's made in treatment."

Judge Perretti placed her decision on the record. She stated that the TPRC had correctly determined that L.B.R. should be placed in phase two, rather than phase three, treatment. The judge found that L.B.R. "has not demonstrated a motivation to participate and indeed has indicated a lack of willingness to participate." The judge stated, "There is no doubt that [L.B.R.] has made little or no progress in sex offender specific therapy."

The judge reviewed Apolito's diagnoses and found them to be supported by the record. The judge made the following key findings:

In this case, [L.B.R.] has a long history not only of sex crimes but of . . . criminal acts of a non-sexual nature and his long history of criminal behavior exists from 1968 through 1992. Showing this degree of antisocial behavior is ingrained in his personality.

[L.B.R.] is able, as a result of his personality disorder, to inflict harm on others without experiencing remorse. In other words, he does what he wants to do regardless of any rights of others.

[Apolito] points out that the many prior convictions for in [L.B.R.]'s record and particularly prior convictions for sex offenses have not served to alter [L.B.R.]'s

conduct, a further symptom of personality disorder in that [L.B.R.] does not learn from experience.

In [Apolito's opinion], [L.B.R.] has serious difficulty controlling his sex offending behavior as demonstrated by his repeated arrests and incarceration and probation, all resulting in no change of conduct.

[L.B.R.] has no restraint, according to the testimony. Thus, [Apolito] concludes that [L.B.R.]'s risk to reoffend is high. He has made no progress in sex offending behavior. [He] [h]as not changed his behavior. [He] [i]s not motivated to acquire the strategies which would permit him to control his behavior and thus prevent relapse.

As to the risk posed by the diagnoses contained in the testimony and the diagnoses of mental and physical illnesses, it's [Apolito's] opinion that these may slow him down because they would serve to lower his physical and mental energy.

However, [Apolito] points out that [L.B.R.]'s crimes did not involve force nor any extraordinary steps to fulfill his needs. Thus, it's to be expected that he would reoffend in like manner if the opportunity presented itself again.

The judge concluded that the evidence was clear and convincing that L.B.R. continues to be a sexually violent predator in need of commitment under the SVPA. The judge entered the order continuing L.B.R.'s commitment and this appeal followed.

The scope of our review in an appeal from an order of commitment is "extremely narrow." In re Commitment of V.A., 357

N.J. Super. 55, 63 (App. Div.), 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." Ibid. (quoting from In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

We have considered L.B.R.'s arguments and thoroughly reviewed the record before us. We are convinced that L.B.R.'s arguments are without merit. We therefore affirm the judgment substantially for the reasons stated by Judge Perretti in the decision placed on the record October 18, 2005.

We are satisfied that the evidence presented by the State supports the judge's finding that L.B.R. has not made sufficient progress in treatment in the STU programs that are "tailored to address the specific needs of sexually violent predators" and the evidence does not permit a finding that L.B.R. is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The finding that L.B.R. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. In re Commitment of W.Z., 173 N.J. 109, 131 (2002). We are therefore satisfied that the judge did not abuse her discretion in ordering L.B.R.'s continued commitment under the SVPA.

 
Affirmed.

The D.S.M. IV is the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994).

(continued)

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A-1345-05T2

RECORD IMPOUNDED

February 15, 2006