IN THE MATTER CIVIL COMMITMENT OF R.X.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6605-02T26605-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.S. SVP-300-03.

____________________________________

 

Submitted January 11, 2006 - Decided

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-300-03.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michele C.

Buckley, Designated Counsel, on the

brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Patrick

DeAlmeida, Assistant Attorney General,

of counsel; Alfred E. Ramey, Jr.,

Assistant Attorney General, on the brief).

PER CURIAM

R.X.S. appeals from an initial commitment order entered on July 31, 2003, in which the court found that R.X.S. is a sexually violent predator under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38 and is subject to involuntary civil commitment. After reviewing the record in light of the contentions advanced on this subsequent appeal, we affirm.

On May 13, 1991, R.X.S. entered a negotiated plea of guilty to two counts of aggravated criminal sexual contact, one count of attempted aggravated sexual assault, two counts of attempted aggravated criminal sexual contact, one count of sexual assault and one count of aggravated sexual assault. The remaining twenty-five counts were dismissed. All of these acts were committed against women he did not know and who lived alone or only with children.

Prior to being sentenced, R.X.S. was evaluated by Dr. Mark Frank, the Principal Clinical Psychologist at the Adult Diagnostic and Treatment Center at Avenel ("ADTC"). During the evaluation, R.X.S. conceded that his dependence on cocaine and methamphetamines "could not account for his sexually deviant behavior." R.X.S. described himself as a person who has great difficulty keeping his temper under control. Dr. Frank noted in his report that several statements made by R.X.S., such as, "I'd tell myself, 'never again'" but then "I'd find myself doing it again" indicated that he compulsively performed his repetitive deviant sexual behavior.

On October 18, 1991, the court sentenced R.X.S. to twenty years at the ADTC. After serving approximately 11 years of his 20-year sentence, R.X.S. was scheduled for release on or about February 12, 2003. By a petition dated January 23, 2003, the Attorney General applied for R.X.S.'s civil commitment under the SVPA.

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. The State is required to 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). 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 committee will re-offend. Id. at 132-34.

Two witnesses for the State testified during the July 23, and July 31, 2003 commitment hearings: Dr. Charles Gnassi and Dr. Robert Carlson. Dr. Vivian Chern Shnaidman, whose certified clinical report was submitted in conjunction with Dr. Roger Harris's report in support of the Attorney General's petition for civil commitment of R.X.S., testified on behalf of R.X.S. at the hearing. Dr. Gnassi, Dr. Carlson and Dr. Shnaidman all conducted evaluations of R.X.S. and prepared reports based on their evaluations, as well as R.X.S.'s case history and patient file.

Dr. Shnaidman is a psychiatrist, who, as part of her practice does work at the ADTC and is responsible for conducting psychiatric evaluations to determine whether the inmates meet the criteria for civil commitment under SVPA. Dr. Shnaidman conducted a "psychiatric termination evaluation" of R.X.S. on or about October 7, 2002. In her report, she notes that R.X.S. has made significant treatment gains in his "rape dynamics," but still does not easily discuss the theft aspects of his sex offenses. While R.X.S. denied any obsessive-compulsive symptoms, Dr. Shnaidman indicates that his "overwhelming anxiety" is frequently associated with an obsessive-compulsive disorder and that severe obsessive-compulsive anxiety "is sometimes associated with serial rape and murder."

Dr. Shnaidman also determined that R.X.S.'s proposed plans for release were "questionable" because the in-patient aftercare program included in his plans was in a marginal neighborhood, had no clear opportunity for sex-offender treatment at the facility and had other ex-convict residents that were not sex offenders, who would likely be hostile to R.X.S. Based on these factors, Dr. Shnaidman concludes in her report that R.X.S. was not likely to remain in the program for long and that supervision over him would be temporary at best. Dr. Shnaidman opines in her report that "with his current release plans and the lack of community supervision, he presents too great a risk to society," and that R.X.S. therefore meets the criteria for involuntary civil commitment to the Sexually Violent Predator Unit at the completion of his sentence at the ADTC.

During the hearing, Dr. Shnaidman testified on behalf of R.X.S. indicating that R.X.S. was a member of the therapeutic community at ADTC, which has "a higher level and higher intensity of therapy" than the rest of the facility. Dr. Shnaidman indicated that, though R.X.S. would likely require treatment indefinitely, that did not necessarily mean inpatient treatment forever. Dr. Shnaidman indicated that R.X.S.'s existing issues could be addressed in outpatient treatment, but that he would need a "very big safety net." She indicated that an ideal discharge plan would include having a person with psychiatric clinical expertise assigned to R.X.S., who could regularly follow up with him and detect any problems that might cause a slippage into reoffending. Dr. Shnaidman conceded that a parole officer would not have the appropriate experience and that absent this type of ideal program, R.X.S. could present a "great" risk to society. During the hearing, Dr. Shnaidman reaffirmed that she still thought that R.X.S. had a mental abnormality that made him unable to control his sexually violent behavior and that he was at risk to sexually reoffend.

Dr. Gnassi, a psychiatrist, conducted an evaluation of R.X.S. on June 30, 2003 and testified on behalf of the State. Dr. Gnassi testified that between 1985 and 1990 R.X.S.'s conduct towards the women he attacked became increasingly violent resulting in escalating levels of physical harm to the victims. He also stated that the span of time in which R.X.S. committed these attacks indicates that, "he is not in control of these impulses, they're repetitive and they are compulsive." In support of his opinion, he noted that R.X.S. admitted that while at the ADTC he had sexual relationships with two men.

Dr. Gnassi also testified that R.X.S. does not have a fully formed sexual identity. He is still struggling with whether he is heterosexual, homosexual or bisexual. Dr. Gnassi opined that treatment was necessary regarding this identity struggle because the predatory aspects of his conduct may be associated with a particular identity. In addition, Dr. Gnassi noted that R.X.S. had difficulty with unresolved sexually aggressive assaultive feelings and that this was an area of instability. When R.X.S. sees on television forced sexual behavior, he in response has aggressive sexual feelings.

Dr. Gnassi also opined that R.X.S. has paraphilia, N.O.S. and transvestic fetishism, which affects his volitional, emotional and cognitive capacities and predisposes him to commit sexually violent acts. Dr. Gnassi indicated that he was unable to rule out sexual sadism, based on the fact that R.X.S. was aware of the fear of his victims, but chose to hurt them anyway. Dr. Gnassi concluded that paraphilia alone, and in combination with R.X.S.'s antisocial personality disorder could predispose an individual to commit sexually violent acts. Based on a review of the case and his evaluation, Dr. Gnassi opined that within a reasonable degree of medical certainty R.X.S. is at a heightened risk to reoffend because of his serious difficulty controlling his sexually violent behavior.

Dr. Carlson also testified at the commitment hearing on behalf of the State. Dr. Carlson stated that R.X.S. appeared to have planned the attacks based on his organization in committing the attacks, as well as the use of a weapon during some of the attacks. Dr. Carlson also noted that there was a trend towards the offenses becoming more violent, more intrusive and more violating of the victims.

Dr. Carlson testified about R.X.S.'s use of methamphetamine and cocaine during the time he committed the attacks. Dr. Carlson, although acknowledging R.X.S.'s progress in addressing drug related issues, thought that R.X.S. would be vulnerable to relapsing to drug abuse due to the unmanageable emotions he experiences from time to time.

Similarly to Dr. Gnassi, Dr. Carlson was also concerned with R.X.S.'s struggle with his sexual identity. Dr. Carlson opined that R.X.S.'s complex issues regarding his sexual identity fueled his anger and rage that were then expressed by committing sexual assaults against women. Dr. Carlson diagnosed R.X.S. with paraphilia N.O.S. non-consenting, as well as antisocial personality disorder and confirmed that paraphilia can predispose a person to commit sexually violent acts. Dr. Carlson concluded that R.X.S. constituted a substantial to significant risk to reoffend.

After reviewing R.X.S.'s treatment records and the reports of the expert witnesses, the trial judge issued a comprehensive oral decision, in which she detailed her reasons for accepting the opinions proffered by Dr. Carlson and Dr. Gnassi and rejecting that of Dr. Shnaidman.

The scope of our review of an order such as this is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The record is more than sufficient to support R.X.S.'s commitment. We affirm, substantially for the reasons expressed by Judge Perretti in her oral opinion of July 31, 2003.

 
Affirmed.

(continued)

(continued)

9

A-6605-02T2

RECORD IMPOUNDED

April 25, 2006