IN THE MATTER CIVIL COMMITMENT OF B.L.J.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1346-05T21346-05T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

B.L.J., SVP-281-02

__________________________________

 

Argued March 28, 2006 - Decided May 2, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-281-02.

Mary Foy, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa Albano, Deputy Attorney General, argued the cause for respondent State (Zulima V. Farber, Attorney General, attorney).

PER CURIAM

This is a second appeal brought by appellant B.L.J. challenging his continued civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to - 27.38 ("SVPA"). In February 2005 this court upheld B.L.J.'s commitment under the statute. Another review hearing was thereafter conducted in October 2005, resulting in an order on October 11, 2005 continuing the commitment. B.L.J. now appeals that order. Upon reviewing the record in light of the newest contentions advanced on appeal, we affirm.

In April 1996, after sexually assaulting F.B., a seventeen-year-old mentally-handicapped male, B.L.J. was found guilty of two counts of second-degree sexual assault. On November 8, 1996, B.L.J. was sentenced to a ten-year term at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey. The two convictions of sexual assault were merged at sentencing. At an earlier bail hearing in that case, B.L.J.'s two nephews, A.R. and R.R., testified that B.L.J. also had sexually assaulted them on various occasions between 1975 and 1979 and again in 1994, respectively. The criminal trial judge found that the truthfulness of the nephews' allegations, which were tested on direct and cross examination, were proven by clear and convincing evidence.

Sexual assault is classified as a sexually violent offense under N.J.S.A. 30:4-27.26. "The Act defines 'sexually violent predator' in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005).

B.L.J. reached the maximum term of his sentence on or about November 12, 2002. Prior to B.L.J.'s release in November 2002, the state filed a petition for civil commitment of B.L.J. under the SVPA, N.J.S.A. 30:4-27.1 to -27.23, based upon the predicate offense of sexual assault.

After a hearing in July 2003, Judge Serena Perretti entered an order for B.L.J.'s initial civil commitment pursuant to the SVPA. B.L.J. was then transferred to the Special Treatment Unit ("STU"), where he has since remained, being periodically re-evaluated and recommitted one time.

In an unpublished opinion, we affirmed an order that B.L.J. continued to be a sexually violent predator in need of involuntary civil commitment. In re Civil Commitment of B.L.J. SVP-281-02, No. A-6816-02T2 (App. Div. February 22, 2005). The order from which he now appeals was entered following a plenary review hearing before Judge Perretti on October 11, 2005.

At the October 2005 review hearing before Judge Perretti, the State presented two expert witnesses: a psychologist, Brian Matthew Freedman, Psy.D. and a psychiatrist, Stanley R. Kern, M.D. There were no defense witnesses.

In his testimony, Dr. Freedman found a strong consistency in the types of aberrant behavior in which B.L.J. has engaged; he also noted consistencies in the ages of the victims, typically between nine and seventeen years of age, many of whom had some form of cognitive or intellectual limitations and over whom B.L.J. had some sort of power.

Dr. Freedman opined that a most telling indicator of B.L.J.'s tendency toward sexually-deviant behavior was B.L.J.'s effort to continue to surround himself with children, working as a karate instructor and a supervisor at the YMCA, despite his prior offensive behavior. B.L.J.'s placement of himself in such close proximity to children indicated to Dr. Freedman compulsivity in B.L.J.'s sexual deviance.

In his own testimony, the State's psychiatrist Dr. Kern diagnosed B.L.J. with pedophilia, non-exclusive type paraphilia, and personality disorder not otherwise specified ("NOS") with anti-social traits. He explained:

[The personality traits which trigger B.L.J. to act out show that he has] no regard for people or other people's needs. Just the kind of individual who would say I want what I want when I want it and don't get in my way and I'll . . . do what I want to do.

Dr. Kern diagnosed pedophilia and paraphilia because the deviant acts noted in the record were against two different groups: children and adolescents, as well as mentally and physically handicapped individuals. He further stated that pedophilia and paraphilia NOS are not the types of diagnoses that will simply disappear or spontaneously go away. He conceded that these are types of diagnoses that can be controlled through treatment, but indicated that B.L.J. has never participated in any such treatment at any time. Indeed, the record before us contains several treatment refusal notes signed by appellant. He is classified in Phase I of treatment within the STU, which is only the first of four intermittent progressions of treatment within the institution. Dr. Kern specified that it is important for B.L.J. to talk about and discuss his offenses in order for him to obtain a full understanding of what he has done.

Dr. Kern further recognized that B.L.J. has engaged in "grooming" behavior, which is signified by a deliberate act or plan to act out upon a victim as opposed to an impulsive act. He further recognized B.L.J.'s intentional interaction with children by starting a karate school so that he could be around children and victimize them. Dr. Kern also testified that B.L.J. had an incident while at ADTC, when he started to groom someone.

Despite the predicate offense occurring in 1994, Dr. Kern testified that he believes B.L.J. would continue to engage in this kind of indecent behavior for two reasons: (1) he has continued to offend, which is evidenced by his grooming of another inmate at the ADTC and (2) he has refused to engage in any kind of treatment that would help him change his behavior. Dr. Kern assessed B.L.J.'s risk of reoffense as "high" because he had offended numerous times, had not done anything by way of treatment to remedy his behavior, and, as such, if given the opportunity, would likely offend again.

Dr. Kern pointed out that if B.L.J. would attend treatment sessions, he could learn to control any relapse through anger management and a better understanding of himself and his behavior. He opined that B.L.J.'s refusal to participate in treatment programs within the STU indicates obstinacy toward society and, in a sense, toward anything that attempts to change his social behavior. He also opined that B.L.J.'s outright denial of committing any offense reflects a negativism that permeates all of his behavior and all his interaction with those who would attempt to help him.

On the present appeal, B.L.J. argues that Judge Perretti erred in continuing his civil commitment. Among other things, defense counsel contends that there is no proof that B.L.J. suffers from pedophilia, that B.L.J. never admitted to fantasies involving prepubescent boys, and that Dr. Kern's diagnosis of pedophilia is baseless. Defense counsel also disputes the propriety of considering B.L.J.'s conduct with his nephews, as that conduct was not ever the subject of a conviction. B.L.J. also contends that the record is inadequate to support a high likelihood of his reoffense.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

At the commitment hearing, the State must prove a 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." Id. at 132. The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will re-offend. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32.

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The committed person may petition for discharge at any time. N.J.S.A. 30:4-27.36d. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32a. "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130; see also In re Commitment of E.D., 183 N.J. 536, 540, 551 (2005) (reaffirming the "highly likely to reoffend" standard for SVPA commitment and re-commitment).

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

At the end of the proceedings, Judge Perretti put a comprehensive oral opinion on the record, stating her reasons for continuing B.L.J.'s civil commitment. She concluded her opinion by stating that she was "clearly convinced that the respondent continues to be a sexually violent predator, suffering from abnormal mental conditions and personality disorders that adversely impact his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexually violent acts." She specifically found it is "highly likely" that B.L.J. would re-offend if he were not confined for further care and treatment at the STU.

Among other things, Judge Perretti found that B.L.J. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators," see N.J.S.A. 30:4-27.34b, a finding which weighs against B.L.J.'s contention that he is no longer in need of commitment under the SVPA. In this regard, Judge Perretti noted that B.L.J. has "steadfastly refused to permit himself to gain any such tools." That intransigence persists, despite this court's prior admonition in our February 2005 opinion that "if [B.L.J.] fully cooperated, his treatment would have been more effective and reflected by the psychologists and psychiatrists who have the ability to influence additional commitment." B.L.J., supra, No. A-6816-02T2 (slip op. at 32).

At oral argument, defense counsel faulted the testifying experts and Judge Perretti for including within their assessments any consideration of the alleged sexual attacks on B.L.J.'s nephews, since those attacks had not led to criminal convictions and were not admitted to by B.L.J. However, we find no error in the manner in which those prior allegations were factored into the analyses of the State's experts and the trial judge. The experts properly considered the non-conviction events, consistent with their professional standards, see N.J.R.E. 703, as background information of the sort reasonably relied upon by other experts in the field. See In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.)("Prior evaluations may be considered [as part of an expert's opinion] but should be utilized carefully in recognition of their hearsay nature."), certif. denied, 185 N.J. 393 (2005).

Additionally, B.L.J.'s prior assaults on his nephews were part of the factual historical record recited in this court's opinion in February 2005, see B.L.J., supra, No. A-6816-02T2 (slip.op. at 5-6), and, as such, should not be subject to relitigation at each periodic review hearing and in any ensuing appeals. State v. Reldan, 100 N.J. 187, 203 (1985) (reciting elements of the law-of-the-case doctrine). In any event, even if B.L.J.'s alleged sexual attacks on his nephews are ignored, his serious predicate offense, his continued diagnoses of mental abnormalities and his dismal lack of therapeutic progress within the STU amply support the continuation of his commitment.

The hearing judge's conclusion that B.L.J. 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. W.Z., supra, 173 N.J. at 132. We find no "clear abuse of discretion" in extending the commitment, J.P., supra, 339 N.J. Super. at 459, nor any manifest deviation from the controlling legal principles under the SVPA. In sum, there has been no material improvement in this committed individual's status since he was last before this court in 2005.

Affirmed.

 

By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

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12

A-1346-05T2

RECORD IMPOUNDED

May 2, 2006