IN THE MATTER OF THE CIVIL COMMITMENT OF J.S.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1505-04T21505-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.S.P. (SVP-374-04)

 
___________________________________

Submitted May 22, 2006 - Decided June 16, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, SVP No. 374-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Nancy C. Ferro, Designated Counsel, of

counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey,

attorney for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Lisa Marie Albano,

Deputy Attorney General, on the brief).

PER CURIAM

J.S.P. appeals from the October 22, 2004 final order finding him to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committing him to the Special Treatment Unit (STU) for one year with a one year review hearing scheduled on October 14, 2005. On appeal, J.S.P. argues that the State presented insufficient evidence to support his commitment, and alternatively, that he should have been conditionally discharged or permitted to enter a program allowing for the gradual lessening of his restrictions. We have thoroughly reviewed the record, and we find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.

At time of commitment, J.S.P. was fifty-eight years of age, with a history of criminal sexual conduct. In 1987, J.S.P. pled guilty to first-degree sexual assault involving two young girls, ages 12 and 13, who were the daughters of his brother-in-law's girlfriend. J.S.P. fondled the breasts and vaginal area of both girls and penetrated the 12-year-old's vagina with his fingers and penis. J.S.P. also forced the 12-year-old victim to perform oral sex on him. He was deemed repetitive and compulsive under the Sex Offenders Act, N.J.S.A. 2C:47-1 to -10, and was sentenced to five years at the Adult Diagnostic and Treatment Center (ADTC). J.S.P.'s treatment at ADTC was described as "marginal at best, due to his denial of significant problems and insistence that he would never do it again."

Thirteen months after being paroled from ADTC on July 10, 1990, J.S.P. committed another sexual offense. In June 1992, he pled guilty to sexual assault, involving the forced vaginal rape of his sixteen-year old daughter, D.P., and was sentenced to twenty years at the ADTC. D.P.'s mother walked in on the rape and saw J.S.P. covering D.P.'s mouth to prevent her from screaming. J.S.P. admitted that he forcibly raped his daughter, explaining that he "wanted something in return" for allowing D.P.'s boyfriend to stay over their house. However, in his presentence evaluation prior to his second confinement at ADTC, J.S.P. claimed that his daughter consented to have sex with him based on a "deal" they struck.

One of J.S.P.'s ADTC therapists, Thomas Calabrese, reported that J.S.P.'s treatment progress was "marginal" and that J.S.P. only started to discuss his own issues eight to ten months prior to his max-out date. Mr. Calabrese further explained that J.S.P. spent almost his entire eleven years at ADTC denying deviant sexual arousal to young girls, and only started to admit to it in the last eight months of incarceration.

This finding was echoed by Dr. Roger Harris who concluded in his March 30, 2004 termination report that J.S.P. only recently admitted that the sexual assaults were for his own sexual gratification and not simply out of revenge. Despite actuarials, which place J.S.P. in the medium-high risk category, Dr. Harris found that J.S.P. should be transferred to the STU because he is only in the beginning stages of sex offender treatment, and that both incarceration and prior sex offender treatment did not serve as a deterrent.

Upon his scheduled release from prison in May 2004, the State filed a petition seeking J.S.P.'s civil commitment pursuant to the SVPA. At the ensuing hearing, the State produced Drs. Michael McAllister and Natalie Barone, as well as Thomas Calabrese. Dr. Laurence Siegel testified for J.S.P.

Dr. McAllister interviewed J.S.P. on two occasions and reviewed numerous sources of information. Dr. McAllister diagnosed paraphilia, NOS; pedophilia, sexually attracted to females, not limited to family members; alcohol abuse in institutional remission; and personality disorder, NOS. He found J.S.P.'s victim pool to be vast and diverse, and his deviant sexual arousal persistent over a two-year period. Dr. McAllister also found that J.S.P. "significantly minimized . . . his sexual offending," and that years of sex offender treatment have not been successful in altering his deviant sexual arousal. J.S.P. was reluctant to participate in treatment during his second incarceration at the ADTC. Dr. Mc Allister concluded that J.S.P.'s risk to reoffend is "great" to "extreme"; that these diagnoses cause J.S.P. serious difficulty controlling his sexually violent behavior; that coercion and force are part of his arousal pattern, which is associated with a greater risk; and that his arousal has been so gratifying to him that he has actively resisted treatment during his most recent ADTC incarceration.

Dr. Barone also diagnosed J.S.P. with pedophilia, sexually attracted to females, non-exclusive; paraphilia, NOS (non-consent); alcohol abuse in institutional remission; and personality disorder, NOS with antisocial traits. Dr. Barone explained that J.S.P.'s response on the Bumby cognitive distortion scale indicates that he continues to minimize child molestation, "essentially advocating for pedophilia and the right to have sex with a child," after fourteen years of sex offender treatment. She further explained that although the risk assessment actuarials placed J.S.P. in the moderate-high risk category, a number of dynamic factors increased J.S.P.'s risk to reoffend, including severity of his sexual pathology, compulsive sexual arousal to children, pedophilic behavior that is quite long-standing, the diverse victim pool in age and relationship, reoffense after treatment and confinement, incomplete treatment and lack of treatment gains even after fourteen years of therapy.

Dr. Siegel, who testified on behalf of J.S.P., diagnosed J.S.P. with pedophilia, female non-exclusive, with a sexual attraction to teenage girls. He also found that J.S.P. has many characteristics of antisocial personality disorder, which can increase risk. Dr. Siegel also admitted that J.S.P. minimizes his sex offenses, and did poorly during his first confinement at the ADTC.

Nevertheless, Dr. Siegel relied heavily on J.S.P.'s actuarial instrument score, which placed him in a group of inmates who have less than a fifty percent chance of sexual recidivism over a period of years. This, despite the fact that Dr. Siegel also found numerous dynamic factors that could increase risk in this case. Dr. Siegel's recommendation against confinement was also based on J.S.P.'s medical condition, opining that "to the extent that his medical illness may shorten his life, his risk of reoffending would go down."

At the conclusion of the hearing, Judge Freedman concluded that the State demonstrated by clear and convincing evidence that J.S.P. was a sexually violent predator who is highly likely to recidivate. In doing so, Judge Freedman rejected the conclusions offered by Dr. Siegel, finding that actuarial scores are but one factor in the risk determination, and instead credited the findings of Drs. Mc Allister and Barone. On this score, Judge Freedman found that J.S.P. suffers from paraphilia, pedophilia, and personality disorder, NOS, and that treatment has not mitigated the risk inasmuch as J.S.P. has difficulty identifying high risk situations and shows little or no emotion regarding how his offending impacted his victims. As a result, Judge Freedman concluded that J.S.P. has serious difficulty controlling his sexually violent behavior towards children and is highly likely to sexually reoffend in the foreseeable future. In the judge's view, there is "no question" that J.S.P. will pose a substantial danger if released into the community. Accordingly, Judge Freedman committed J.S.P. to the STU, with a review hearing to be held in one year. This appeal follows.

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(b). "[T]he State must prove that 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." In re the Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish "that it is highly likely that" the committee will reoffend "by clear and convincing evidence." Id. at 132-33. See also In re the Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of our review of judgments of commitment is extremely narrow. In re the Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We give the utmost deference to the trial judge's determination of the appropriate balancing of societal and individual liberty. In re the Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). The ultimate determination of a sex offender's risk of reoffense is reserved to the sound discretion of the trial court. In re G.B., 147 N.J. 62, 79 (1996). That determination will be subject to modification only where the record reveals a clear abuse of discretion. In re D.C., 146 N.J. 31, 48 (1996). Measured by this standard, we are satisfied that there is clear and convincing evidence in the record establishing each of the requisite statutory elements for J.S.P.'s commitment under the SVPA. We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of October 22, 2004.

We are also satisfied that having found J.S.P. in need of commitment as a sexually violent predator, Judge Freedman properly committed him to the STU for custody, care and treatment rather than ordering his conditional discharge or placement in a less restrictive facility. See N.J.S.A. 30:4-27.32a; In re the Civil Commitment of J.J.F., 365 N.J. Super. 486, 500 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re the Civil Commitment of E.D., 353 N.J. Super. 450, 457-58 (App. Div. 2002).

 
Affirmed.

(continued)

(continued)

8

A-1505-04T2

RECORD IMPOUNDED

June 16, 2006