IN THE MATTER CIVIL COMMITMENT OF J.Z.M. v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 1348-05T2A-6692-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.Z.M.,

SVP # 253-02.

 

Argued February 6, 2006 - Decided February 17, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

SVP No. 253-02.

Patrick Madden, Deputy Public Defender,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney).

Jeffrey Caccese, Deputy Attorney General,

argued the cause for respondent (Zulima

V. Farber, Attorney General, attorney).

PER CURIAM

J.Z.M. appeals from a judgment entered August 4, 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. J.Z.M. is a forty-seven year old man who has been deaf since birth. On June 23, 1993, he pled guilty to second-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2b(3) and on September 22, 1993, he was sentenced to a five-year prison term. He was released on June 4, 1996. On May 10, 1999, J.Z.M. pled guilty to sexual assault, in violation of N.J.S.A. 2C:14-2c(1). In addition, on July 27, 1999, he pled guilty to the making of terroristic threats in violation of N.J.S.A. 2C:12-3b, and stalking, in violation of N.J.S.A. 2C:12-10. J.Z.M. was sentenced to five years on the convictions for terroristic threats/stalking and a concurrent three-year term on the sexual assault.

Shortly before J.Z.M. was scheduled to be released from prison after serving the sentences imposed in 1999, the State filed a petition under the SVPA for his commitment as a sexually violent predator. A hearing on the petition took place on September 18, 2002 and thereafter the judge entered an order of commitment. J.Z.M. appealed. While that appeal was pending, an annual review hearing was held and the judge determined that J.Z.M. remained a sexually violent predator in need of continued commitment under the SVPA. J.Z.M. did not take an appeal from that judgment.

In an opinion filed February 4, 2005, we reversed the September 18, 2002 commitment order and remanded for a new commitment hearing because, at the initial commitment hearing, the State presented testimony from Dr. Michael McAllister, a staff physician at the STU, whose testimony was based in large part upon the medical opinions of physicians who authored the original commitment certificates. In the Matter of the Civil Commitment of J.Z.M., No. A-1134-02T2 (App. Div. Feb. 4, 2005) (slip op. at 4). We concluded that without the testimony of the authors of the commitment certificates, McAllister's testimony had been impermissibly based on hearsay. Id. at 5.

Judge Serenna Perretti conducted the hearing on August 4, 2005. Luis V. Zeiguer, M.D., a forensic psychiatrist, testified for the State. Zeiguer performed a psychiatric assessment of J.Z.M. and prepared a report dated July 11, 2005, in which he diagnosed J.Z.M. as having paraphilia, not otherwise specified (NOS), and personality disorder NOS. Zeiguer wrote in the report that these diagnoses were "manifested by [J.Z.M.'s] crimes and poor responses to punishment and treatment."

The doctor found that J.Z.M. was not deterred by punishment and he did not learn from experience or treatment. He wrote, "[J.Z.M.] is a treated sex offender whose very high risk has not yet been significantly mitigated either by the aging process, illnesses or treatment results." Zeiguer additionally wrote that J.Z.M. "suffers from a mental abnormality that affects his cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence." The doctor opined that J.Z.M. did not meet the standard for conditional release under the SVPA.

Zeiguer testified about his diagnoses. He noted that J.Z.M. has a history that includes several sexual offenses: a conviction in 1993 for aggravated sexual assault; a conviction in 1999 for sexual assault; convictions in 1999 for terroristic threats and stalking; a 1992 charge for aggravated sexual assault that was "no billed;" and a 1997 charge for sexual assault that also was "no billed." In Zeiguer's view, this record supported his diagnosis of paraphilia NOS.

Zeiguer added that J.Z.M. is a person of normal intellectual function but he exaggerates his problems in communication. He has a history of drug use. Zeiguer determined that J.Z.M. fulfills all of the diagnostic criteria for anti-social personality disorder.

Zeiguer additionally testified that, in his interview with J.Z.M., he came to believe that J.Z.M. was trying to obfuscate and confuse. Zeiguer asserted that J.Z.M.'s "discrepant versions" of past events constituted "pathological lying," which he described as "lying that's done with a purpose, which is mainly to minimize the seriousness of his sexual offenses." Zeiguer added that he disagreed with a recommendation of the treatment team, which suggested that a cognitive assessment could be performed to establish a baseline for J.Z.M.'s treatment progress. Zeiguer said that J.Z.M. was "malingering serious linguistic impairment and . . . mental retardation."

Zeiguer also testified that J.Z.M.'s "mental abnormalities" predispose him to commit sex offenses. J.Z.M.'s drug dependence makes him more impulsive and "care less about getting caught," thereby elevating the risk of re-offense. The doctor was asked to characterize J.Z.M.'s progress in treatment and he said that it had not been significant. He characterized J.Z.M.'s risk of re-offense as "extremely high."

The State also presented testimony from Thomas Schattner, Psy.D., a clinical psychologist. Schattner was a member of the Treatment Progress Review Committee (TPRC) and he was assigned to prepare a report setting forth the TPRC's findings. The report states that J.Z.M.'s communication problems have impeded his treatment progress. However, the treatment providers informed the TPRC that J.Z.M. may be "intentionally deceiving or manipulating the group using his impairments in communication as a diversion or excuse to avoid taking responsibility for his offending behaviors." The TPRC recommended that J.Z.M. remain in phase 2 of his treatment.

Schattner testified that the TPRC had recommended continued phase 2 treatment because J.Z.M. had not completed all of the phase 2 requirements, which are to build a relationship with his peers and treatment providers and gain a basic knowledge of the sex offender specific treatment concepts that apply to him. Schattner said that J.Z.M. "has not shown that basic knowledge" on a "consistent basis." Schattner asserted that J.Z.M. has not been able to consistently describe his sexual offenses. When his descriptions of the offenses are coherent, they are "either minimized or inconsistent with the official record." The interpreters are unable to understand him and, Schattner said, there is the "possibility of intentional manipulation."

Schattner was asked to characterize J.Z.M.'s treatment to date. He responded by stating that J.Z.M. has not met the requirements for proceeding into phase 3. His overall progress in mitigating risk has been minimal. Schattner said that J.Z.M. needs to look at his "arousal patterns, his sex offense cycle, [as well as] possible relapse prevention strategies and all that entails." However, that is "a little bit farther down the road." J.Z.M. needs to work on addressing his "sexual deviance." Schattner asserted that an in-depth assessment of J.Z.M.'s communication skills is necessary. He stated that J.Z.M.

becomes confused and makes inconsistent statements. And there is the possibility that he can be intentionally misleading treatment providers....It could be that there's a communication problem with the interpreters. It could be that he's illiterate. It could be that he is intentionally deceiving treatment providers.

J.Z.M. presented testimony from Paul Fulford, Ph.D., a licensed psychologist. Fulford furnished a report dated June 1, 2005, in which he stated that he attempted to interview J.Z.M. on April 29, 2005. Fulford had the assistance of two translators, due to the nature of J.Z.M.'s hearing impairment and his "lack of expressive language." Fulford said that after an hour of attempting to communicate with J.Z.M., he terminated the interview. Fulford opined that an expert should be retained to address the role of J.Z.M.'s deafness and his ability to profit from any "insight oriented psychotherapy in a hearing community."

Fulford testified that he could not draw any conclusions about J.Z.M. other than the "simple observation" as to his "communication impairment." He reviewed J.Z.M.'s treatment notes and testified that the treatment has been "essentially marginal." The notes indicated that J.Z.M. is "not progressing." Fulford said that he was not able to provide any diagnosis or risk assessment.

After hearing the evidence and the summations by counsel, Judge Perretti rendered her decision from the bench. She found that the evidence was clear and convincing that J.Z.M. remained a sexually violent predator with a continued need for commitment under the SVPA. The judge found that J.Z.M. suffered from an abnormal mental condition or personality disorder that adversely impacts his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexually violent acts. The judge determined that J.Z.M. has a serious difficulty controlling his sexually offending behavior and it is highly likely he will commit sexually violent offenses if he is released. The judge entered the order continuing J.Z.M.'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 J.Z.M.'s arguments on this appeal and thoroughly reviewed the record before us. We are convinced that J.Z.M.'s arguments are without merit. We therefore affirm the judgment substantially for the reasons stated by Judge Perretti in her decision on the record.

We are convinced that there is ample support in the record for the judge's conclusion that J.Z.M. remains a sexually violent predator in need of commitment under the SVPA. J.Z.M. does not dispute that he committed a predicate offense, specifically the sexual assault for which J.Z.M. was convicted on May 10, 1999. The evidence supports the judge's finding that J.Z.M. has not made sufficient progress in the STU programs that have been "tailored to address" his "specific needs" as a sexually violent predator. See N.J.S.A. 30:4-27.34b.

There also is clear and convincing evidence for the judge's finding that J.Z.M. suffers 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 re-offend if released from the STU. In re Commitment of W.Z., 173 N.J. 109, 131 (2002). We therefore are satisfied that the judge did not abuse her discretion in ordering J.Z.M.'s continued commitment pursuant to the SVPA.

Affirmed.

 

(continued)

(continued)

9

A-6692-04T2

RECORD IMPOUNDED

February 17, 2006