IN THE MATTER CIVIL COMMITMENT OF B.K.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1797-06T21797-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF B.K.W. SVP-121-00.

_______________________________

 

Argued September 26, 2007 - Decided -

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-121-00.

Justin Edward Caso, Assistant Deputy Public Advocate, argued the cause for appellant, B.K.W. (Ronald K. Chen, Public Advocate, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent, State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

B.K.W. appeals from the October 10, 2006 order continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

B.K.W. was adjudicated a sexually violent predator and committed to the STU on January 24, 2001. His commitment continued pursuant to the orders of August 21, 2002 and August 5, 2003. We affirmed these orders. In re Civil Commitment of B.K.W., No. A-0626-02T2 and No. A-0340-03T2 (App. Div. December 13, 2004). B.K.W.'s commitment continued after review hearings on April 22, 2005 and October 19, 2005. On October 10, 2006, Judge Perretti ordered B.K.W. to remain committed to the STU.

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). The State must prove the individual is 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 it is highly likely the individual will reoffend. Id. at 132-34; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the October 6, 2006 review hearing, Pogos H. Voskanian, M.D., a psychiatrist, testified B.K.W. suffers from:

Paraphilia, NOS, opiate dependence in institutional remission, alcohol dependence in institutional remission, history of marijuana abuse, antisocial personality disorder, amblyopia . . . and problems with the legal system for stressors.

He also testified B.K.W. lacked empathy or remorse, was defensive, continually denied his sexual pathology, blamed the system and his victim and failed to move beyond Phase Two treatment due to his lack of motivation and commitment to his treatment program. Dr. Voskanian stated, "Instead of concentrating on treatment, [B.K.W.] is resorting to other means to resolve his civil commitment." In his report, dated September 22, 2006, Dr. Voskanian opined:

[B.K.W.] has considerable work to do in first clarifying his background history, and addressing his offenses and his sexual, characterologic and substance use related pathology. He is now in Phase 2 of treatment but so far had [sic] not demonstrated a measurable progress other than attendance to his groups.

Dr. Voskanian concluded B.K.W. presently suffers from a mental abnormality or personality disorder that affects him emotionally, cognitively and volitionally as to predispose him to sexual violence. The doctor also concluded B.K.W.'s risk to reoffend sexually, if not committed, "remains high, at the same level as before commitment."

In her decision, Judge Perretti emphasized B.K.W.'s "treatment notes cause substantial concerns about [his] participation in treatment here at STU. In particular, there is substantial indication of lack of significant participation in substance abuse therapy." She stated the notes indicated B.K.W.'s treatment team believed that he may be "skating by, hoping to get out like he did last time without modules, polygraph, et cetera"; he failed to participate in both substance abuse treatment and AA/NA programs; and his placement in Phase Two is "an accurate reflection upon [his] lackluster participation in treatment." Based upon the treatment notes and Dr. Voskanian's testimony, Judge Perretti concluded:

The evidence presented by the State was uncontradicted. It is clear and convincing. The Court is clearly convinced that the respondent continues to be a sexually violent predator, suffering from abnormal mental conditions and personality disorder that influence his cognitive, emotional, and volitional functioning so as to predispose him to commit sexually violent acts.

He has serious difficulty controlling his sex offending behavior, particularly in view of his accumulated history of repetitive sex offending, taken together with the combination of paraphilia and antisocial personality disorder.

As a result of the serious difficulty controlling his sex offending behavior, it is highly likely that he will commit sexually violent offenses if not committed for further treatment under the SVPA. There will be a review in one year.

 
Our scope of review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We afford "special deference" to a committing judge's decision. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We must defer to the committing judge's decision unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). There is no such abuse here. We, therefore, affirm the October 10, 2006 order.

Affirmed.

Judge Perretti stated, "The Court will not use any of the inadmissible hearsay contained in Dr. Voskanian's reports" and would not rely on any diagnosis contained in B.K.W.'s treatment notes.

B.K.W.'s treatment notes were placed into evidence without objection. Dr. Voskanian relied on those notes in formulating his opinion.

5

A-1797-06T2

RECORD IMPOUNDED

November 8, 2007