IN THE MATTER CIVIL COMMITMENT OF J.W.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0473-07T20473-07T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.W., SVP-455-07

______________________________________________________________

 

Argued October 31, 2007 - Decided

Before Judges Wefing, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-455-07.

Lisa Marie Albano, Deputy Attorney General argued the cause for appellant State of New Jersey (Anne Milgram, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Albano, on the brief).

Joan D. Van Pelt, Deputy Public Advocate, argued the cause for respondent J.W. (Ronald K. Chen, Public Advocate, attorney; Lewis P. Sengstacke, Assistant Deputy Public Advocate, of counsel and on the brief).

PER CURIAM

This matter came before us on an emergent application by the State, seeking a continuation of a temporary stay of the portion of a September 20, 2007 order of the Law Division that directed the discharge of J.W. from his continued civil commitment as a sexually violent predator under the Sexually Violent Predator Act, N.J.S.A. (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We extended the stay, pending appeal and expedited oral argument. We now reverse the order of discharge and remand the matter for periodic reviews under the SVPA.

On September 22, 1981, defendant and an accomplice forced a woman into her own vehicle at knife point. They then drove her to a secluded area where they took turns vaginally raping her and performing other sexual acts. They stole the woman's money and departed in her car, after dropping her off. On January 27, 1982, defendant J.W. pled guilty to aggravated sexual assault, N.J.S.A. 2C:14-2(a), and armed robbery, N.J.S.A. 2C:15-1. In accordance with the terms of his plea agreement, J.W. was sentenced to two concurrent ten year prison terms with three years of parole ineligibility.

After serving three years on that sentence, defendant was released on parole. While still on parole in 1987, defendant was arrested and charged with kidnapping and rape. In this second incident, J.W., operating with a different accomplice, pushed an eighteen-year-old female into a car and drove again to a secluded area. They forced this woman to perform fellatio on them and alternated vaginally raping her. After a trial, the jury found defendant guilty of aggravated sexual assault, N.J.S.A. 2C:14-2(a), kidnapping, N.J.S.A. 2C:13-1b(1), and conspiracy, N.J.S.A. 2C:5-2. On December 18, 1987, the court sentenced defendant on the aggravated sexual assault count to twenty years in prison, with ten years parole ineligibility. On the kidnapping charge, defendant was sentenced to a consecutive term of fifteen years in prison. The conspiracy count was merged. That judgment was later amended to excise the ten-year parole disqualifier.

The term of defendant's sentence was set to expire in 2007. However, in April 2007, the State moved for the civil commitment of defendant under the SVPA. J.W. was temporarily committed to the Special Treatment Unit (STU) on March 13, 2007, pending a hearing. That hearing, which occurred on September 17, 2007, resulted in the September 20, 2007 order from which the State has appealed.

At the hearing, two witnesses testified for the State, Dr. Evan Feibusch and Dr. Brian Friedman. Dr. Feibusch diagnosed defendant with antisocial personality disorder. Dr. Feibusch noted that J.W., while [civilly] committed, was not involved in sex offender treatment. The doctor noted that when defendant was questioned about his previous sexually violent behavior, he minimized the degree of harm instilled in the first victim and denied ever raping the second victim. Defendant continued to express his professed belief that the second victim consented to accompanying him and his accomplice and consented to all sexual contact.

Regarding defendant's medical state, Dr. Feibusch testified that defendant had peripheral vascular occlusive disease and was status post-aortic valve replacement. According to Dr. Feibusch, defendant may experience some leg pain when exerting significant amounts of energy due to these conditions. Defendant's condition may also decrease his risk to sexually re-offend to some degree, but Dr. Feibusch, nevertheless, found that J.W. presented a high risk to re-offend.

Dr. Freidman diagnosed defendant with paraphilia, not otherwise specified (NOS), and a personality disorder with antisocial traits. He believed defendant engaged in such sexually deviant activity to satiate specific sexual fantasies. Defendant's desires did not dissipate as a result of his prison term. Dr. Freidman agreed that defendant had a high risk to sexually re-offend.

The judge rendered her decision orally from the bench on September 18, 2007. She found that "[t]here is no question about the respondent's having been convicted of sexually violent offenses as defined by the Statute." She took note of Dr. Feibusch's diagnosis of antisocial personality disorder accompanied with "methampehtamine dependence, and cocaine dependence, both in controlled environment, alcohol abuse and borderline intellectual functioning." She also noted that the doctor "deem[ed] the risk of re-offense to be highly likely." In spite of the doctors' opinions, however, she characterized defendant's medical conditions, namely hepatitis C, migraines, post-aortic valve replacement and peripheral vascular occlusive disease, as "serious health problems." Expressing the reasons for her decision, the judge stated:

The Court [was] clearly convinced that there, respondent suffers from abnormal mental conditions and personality disorders that predispose him to commit sexually violent acts.

The Court finds that respondent is a dependent on methamphetamine and cocaine and is an alcohol abuser. The Court finds that the respondent has an antisocial personality disorder as well as borderline intellectual functioning. The Court is satisfied that the diagnosed physical illnesses reported by Dr. Feibusch exist. The Court is satisfied that these physical conditions are serious and at least in the case of peripheral vascular occlusive disease limit the respondent's ability to engage in exerting activities. The Court notes that the activities connected with the two crimes required substantial physical exertion over extended periods of time. It is clear from the testimony of the two experts that this particular specialty of the respondent is what he enjoyed. The Court is not convinced that this defendant can now in his physical condition, engage in that kind of activity.

Further, the Court is persuaded that part of respondent's preference is indulging in forced sex with an accomplice. The Court is not convinced that this weakened 47 years old man is in any position to procure an accomplice for the type of criminal activity that is his sexual choice. The Court is painfully aware that the two rapes performed by this respondent were indeed brutal, cruel and heinous. However, given the testimony as to the importance of the nature of the crime to this respondent, this Court is not convinced that the risk is highly likely that he will be able to repeat it. It is noteworthy that this respondent has no other criminal charges or arrests of a sexual or a nonsexual nature. There is no indication that the respondent had acted in any inappropriate sexual manner in all the years that he has been in custody. Because of the extraordinary modus operandi selected by this respondent to satisfy his sex crimes of the moment, the Court is not clearly convinced that he poses a current risk to the public if he is at this time released.

The respondent is ordered discharged. This order is stayed for 10 days pending application by the State if it wishes to appeal.

As previously noted, we continued the stay, pending this appeal.

First, our courts have recognized the State's right to appeal the discharge of a sexually violent predator. See, e.g., In re the Civil Commitment of E.D., 183 N.J. 536, 545 (2005); In re the Civil Commitment of V.A., 357 N.J. Super. 55, 57 (App. Div. 2003). Although this right is not specifically codified in the Court Rules, we see no reason to restrict the State's ability to appeal. We, therefore, proceed to review the lower court's decision.

On appeal, the scope of review is "extremely narrow, with the utmost deference accorded to the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). SVP judges are regarded as specialists whose findings are entitled to special deference. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). Therefore, we will disturb the trial court's ruling only where the record lacks clear evidence to support the trial court's conclusion. In re Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div. 2007).

For the State to have its petition for civil commitment granted, it must demonstrate that the individual in question is a threat to the health and safety of others because he "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; see In re Commitment of W.Z., 173 N.J. 109, 132 (2002) (there must be a showing that defendant has serious difficulty controlling his sexually violent behavior and is highly likely to re-offend). The State must prove all the elements of N.J.S.A. 30:4-27.26(b) by clear and convincing evidence. In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007); In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993).

The court below acknowledged there was "no question about the respondent's having been convicted of sexually violent offenses as defined by the Statute." Likewise, "[t]he Court [was] clearly convinced that there, respondent suffers from abnormal mental conditions and personality disorders that predispose him to commit sexually violent acts." Nevertheless, the Court seemingly rejected the expert opinions offered by the doctors. Despite Dr. Feibusch's finding that defendant would only suffer some discomfort in his legs, the Court reasoned that defendant's serious medical conditions would vitiate his high risk to re-offend. No testimony on the record indicated that defendant would be unable to enlist the services of yet another accomplice. Furthermore, there was no showing that defendant's age or physical condition would diminish or seriously impact his deviant sexual appetite. Considering the characteristics of his past sexual crimes -- defendant did not chase down a victim; he threatened them with harm and forced them into a car -- we find no credible evidence in the record to support the conclusion that defendant would likely abandon his previous conduct or that he could not, with the aid of a weapon and an able-bodied accomplice, follow the modus operandi employed in the two previous instances. The brutal nature of his past sexual crimes and his disregard for the terms of his parole, combined with his obvious mental deficiencies, signify a high likelihood of recidivism.

While we acknowledge that "'[c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection'" W.Z., supra, 173 N.J. at 125 (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979)), we find that the court below mistakenly exercised its discretion. The conclusion reached by the court regarding defendant's physical limitations is at variance with the record established. The record reveals that defendant has exhibited disinterest in participating in treatment, and consequently, he has failed to make any significant progress. He has yet to admit the severity of his previous violent sexual behavior. Under such circumstances, he remains a serious danger to society as he is highly likely to re-offend.

 
The court's order is reversed, and the matter is remanded for entry of an order civilly committing J.W. and scheduling an appropriate review hearing.

Reversed and remanded.

(continued)

(continued)

9

A-0473-07T2

RECORD IMPOUNDED

 

February 5, 2008