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

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2463-08T22463-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.E.J.,

SVP-378-04

_____________________________________

 

Argued May 28, 2009 - Decided

Before Judges Stern and Lyons.

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

378-04.

Patrick Madden, Assistant Deputy Public Advocate, argued the cause for appellant S.E.J. (Ronald K. Chen, Public Advocate, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

S.E.J. appeals from a December 23, 2008, judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

S.E.J., a fifty-seven-year-old man, was convicted in 1987 of first-degree aggravated sexual assault, pursuant to N.J.S.A. 2C:14-2(a), as well as armed robbery, criminal restraint, terrorist threats and possession of a weapon for unlawful purposes, for the forcible rape of a twenty-two-year-old woman at gunpoint. In October 1985, after entering the victim's residence with a gun, and while wearing a ski-mask, S.E.J. demanded valuables from the victim, stole money, gagged her with tights, removed her clothes, penetrated her with his fingers and penis, performed oral sex on her, and forced her to do the same on him and ejaculated in her mouth. Next, he forced her to bathe, washing both her body and her mouth. S.E.J. locked the victim in a closet with her mother and her four-year-old nephew and told her to stay there. A week later, the victim received an anonymous phone call from a voice she recognized as S.E.J.'s

S.E.J. was indicted on seventeen counts for various sexual offenses against three different women, but was convicted for only one of the described events. However, the sexual assaults against the other two women involved a similar pattern.

S.E.J. has a long criminal history. In 1973 and 1974, he was charged with indecent exposure, but the disposition is unknown. In 1974, he was found guilty of simple assault. In 1975, S.E.J. was charged with unlawful entry and larceny and received a disposition of "no bill." S.E.J. was sentenced to one year in jail for second-degree robbery in 1976, eighteen months plus probation for receiving a stolen motor vehicle and obstruction in 1977, eighteen months plus probation for breaking and entering in 1978, and three years for threatening to take a life in 1978. S.E.J. was also convicted of and received various sentences for breaking and entering and atrocious assault and battery in 1979, various parole violations, and in 1987, he was found guilty of escape.

Regarding the sentence for the 1985 predicate offense, S.E.J. was sentenced to a twenty-five year prison term for aggravated sexual assault, with concurrent terms for various other convictions and a parole ineligibility term of twelve-and-a-half years. In 1990, S.E.J. pled guilty to fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-36. While S.E.J. was evaluated by the Adult Diagnostic and Treatment Center (ADTC) on the predicate offense prior to his 1987 sentencing and was eligible for sentencing under the Sex Offender Act, he was, nevertheless, sentenced to state prison. During this time, he received no sex offender treatment. However, following the State's petition for S.E.J.'s civil commitment in October 2004 pursuant to the SVPA and a hearing, S.E.J. was committed to the STU.

After a 2006 annual review, S.E.J. was found to be in need of continued treatment and he appealed both the orders from his initial 2005 commitment and his 2006 review hearing. In April 2007, we affirmed both orders in an unpublished opinion. In re Civil Commitment of S.E.J., No. A-4994-04, No. A-5771-05 (App. Div. Apr. 26, 2007). After his next annual review hearing, a January 2008 order was entered continuing S.E.J.'s commitment to the STU for another year, and in June 2008, we affirmed that order, In re Civil Commitment of S.E.J., No. A-2510-07 (App. Div. June 20, 2008).

After a two-day hearing before Judge Serena Perretti on December 16 and 18, 2008, a final order was entered on December 23, 2008, continuing S.E.J.'s commitment to the STU pursuant to the SVPA. S.E.J. filed a notice of appeal on January 15, 2009.

At the hearing, the State called two witnesses: Dr. Marta Scott, a psychiatrist, and Dr. Nicole Paolilo, a psychologist. The evidence presented included Dr. Scott's report, Dr. Paolilo's report, and S.E.J.'s treatment notes. S.E.J. called psychologist Dr. Timothy Foley and his report was also admitted into evidence.

The State called Dr. Scott to testify. Dr. Scott concluded that S.E.J. is a "high risk to sexually reoffend" and "continues to suffer from a mental abnormality that affects his cognitive, emotional and volitional capacity in a manner that results in serious difficulty in controlling his sexually dangerous behavior and predisposed him to commit future acts of sexual violence." This opinion was based on a diagnosis of paraphilia NOS, meaning that S.E.J. "has experienced recurrent intense sexually arousing fantasies, sexual urges or behaviors with nonconsenting individuals." Dr. Scott noted that an earlier evaluation by Lawrence Turek, MA, on June 19, 1987, showed S.E.J. reported "rape fantasies" and admitted a need to expose himself and masturbate. This exhibitionism apparently spanned a ten-year time frame prior to the predicate offense. Further, S.E.J. had previously admitted to a treatment evaluator, Dr. Mark Frank, Ph.D., on August 20, 1987, that he had forced a woman to have sex with him in high school. Finally, his Static-99 actuarial test score of seven predicted a high risk of re-offense.

According to Dr. Scott, S.E.J.'s current version of his sexual offense history is "substantially different from the official version of his offenses (charged or investigated)." Further, S.E.J. has yet to engage in treatment "in a meaningful way."

The State also called Dr. Paolilo to testify as an expert psychologist concerning the Treatment Progress Review Committee's (TPRC) evaluation of S.E.J. and its annual review report, dated December 12, 2008. Dr. Paolilo is a member of the four person TPRC Committee, and the Committee based its diagnosis on S.E.J.'s treatment notes beginning January 7, 2008, and ending November 17, 2008, as well as archival data and a December 10, 2008, clinical interview of S.E.J.

Dr. Paolilo and the TPRC concluded S.E.J. suffered from the following psychiatric conditions: paraphilia NOS non-consent, exhibitionism, alcohol abuse, and antisocial personality disorder.

Regarding the paraphilia NOS non-consent diagnosis, Dr. Paolilo noted that in addition to S.E.J.'s conviction, he was also arrested for and/or suspected of assaulting many more women using modus operandi consistent with the predicate offense (wearing a ski-mask, breaking into homes and stealing money, grabbing the victim from behind, similar sexual acts, forcing the victim to bathe afterwards, and locking the victim in a closet or separate room). However, even discounting the non-charged incidents, Dr. Paolilo noted that S.E.J.'s behavior escalated from exhibitionism to rape, he previously admitted to rape fantasies, and the rape for which he was convicted indicated a planned offense, where he gave directions to "cover his tracks" and escape prosecution, suggesting advance mental rehearsal.

The diagnosis of exhibitionism was based on documented history and self-reports by S.E.J., who began by exposing himself to women at a distance over a period of ten years prior to the predicate offense and his reports of an inability to resist the urge.

During S.E.J.'s interview with the TPRC panel, lasting one hour, he avoided some questions by answering "globally." When asked about his power/control issues, he began writhing and sobbing, he clenched and pounded his fists on a table and he turned toward the wall. S.E.J. explained the predicate offense, stating the victim stood between him and his goal of obtaining valuables when she only gave him a piggy bank. According to S.E.J., at that point, because he felt like a failure, he spontaneously thought of raping her and taking what she valued most.

S.E.J. described his risk of reoffending as a five on a scale of one to ten and said he is only at risk if the "exact" circumstances arise again as it did with his victim.

Dr. Paolilo noted that S.E.J. denied many aspects of the predicate offense, like intending to assault the victim, holding a gun to her and making her bathe. Yet, the TPRC was confused as to why, if his sole objective was to rob the victim and not rape her, did he leave her jewelry, reported to be in plain sight. Dr. Paolilo noted that S.E.J. had taken minimal responsibility for his actions, refused to address aspects of his sexual offending history, only answered questions he wanted to answer and continually presented inconsistent versions of his criminal history throughout treatment. Dr. Paolilo noted that while S.E.J. was only beginning to engage in treatment, attend modules, and draft some of the written requirements, he needed to actively participate in treatment over the next year.

Dr. Paolilo performed the Psychopathy Checklist-Revisited test on S.E.J., where any score over thirty indicates psychopathy. S.E.J. scored a 25.6, which is considered in the "high range."

Dr. Paolilo and the TPRC "very hesitantly" recommended S.E.J. for Phase 3 treatment based on his acknowledgement of the predicate rape. However, he was, "at best, in the early stages of Phase 3" and needed to "address his deviant sexual arousal, relapse prevention techniques, sexual assault cycle and the details of his sexual offense history" because the panel suspected, given S.E.J.'s resistance to treatment, "his sexual pathology is more deeply ingrained than he wants to acknowledge." According to Dr. Paolilo, S.E.J. does not deal with his deviant arousal and only deals with the "here and now."

S.E.J. called Dr. Foley to testify as an expert psychologist. Dr. Foley noted that in S.E.J.'s interview, he expressed remorse for his actions against his victim. However, he denied portions of the predicate act, as well as portions of prior reports where S.E.J. had admitted to exhibitionism to treatment professionals. S.E.J. denied to Dr. Foley that he previously admitted to a lengthy history of exposing himself and indicated he had only exposed himself one time in 1986. S.E.J. also did not recall some of his criminal history.

S.E.J. indicated to Dr. Foley that he "has been able to open up" in his treatment and move beyond legal issues, but he felt that the treatment providers assumed he committed crimes for which he was never convicted. Dr. Foley believed that an explanation for S.E.J.'s slow progress in treatment could be attributed to his refusal to admit to crimes he did not commit.

Dr. Foley ultimately found that S.E.J. "could be" diagnosed with exhibitionism and paraphilia NOS, but found that because S.E.J. had exhibited no sexual misconduct in thirty years, there "are no clear indications that [S.E.J.] has volitional deficits that appreciably compromise his capacity to control sexually violent acts." Further, S.E.J. was less than "highly likely" to commit sexually violent crimes because of his advanced age, according to Dr. Foley. This is because S.E.J.'s Static-99 actuarial test score of seven, predicting a high risk of re-offense, "is apt to overpredict his risk because of his advancing age. In general, rape recidivism decreases by half between the ages of 24 and 45." Also, treatment efforts reduce risk of recidivism.

Dr. Foley also performed the Hare Psychopathy Checklist test on S.E.J. He scored a 15.3, which is "not indicative of a psychopathic classification."

On December 23, 2008, the trial court found that the State's evidence was "clear and convincing" that S.E.J. remained a sexually violent predator suffering from a mental abnormality and had personality conditions which predisposed him to commit sexually violent acts. The trial court found the testimony of both Drs. Scott and Paolilo to be persuasive and credible and there was evidence to support the determination that S.E.J. had paraphilia NOS, exhibitionism, alcohol abuse, and anti-social personality disorder. The trial court also found that S.E.J. had insufficient treatment to be able to control his sexually deviant impulses, he continued to minimize his offending behavior and he was not forthcoming.

The trial court noted that Dr. Foley's main consideration in determining S.E.J.'s risk was his age and treatment efforts. Yet, the court found S.E.J.'s age "was a statistical value" and had "no direct value in predicting individual action." The trial court further found there to be no substantial treatment efforts when S.E.J. presently denied exhibitionist statements and aspects of the predicate offense he previously made to the treatment team. The court noted that in a March 2000 report, S.E.J. admitted to making his victim bathe after the assault, yet now he denied that.

Regarding the statistical tests, the court noted that even discounting the non-charged incidents, as Dr. Paolilo testified, S.E.J.'s behavior escalated from exhibitionism to rape, and the rape indicated a planned offense.

The trial court noted that the record provided further support for S.E.J.'s lack of substantial treatment efforts. S.E.J. had not completed any of the written requirements of the STU, such as submitting an autobiography or a sex offense questionnaire.

The trial judge concluded that "[i]t is clear that the respondent is highly likely to commit sexually violent acts if not continued in custody. It is to be expected that the sexually violent acts would be within the foreseeable future if respondent were discharged. There will be a review in one year." This appeal followed.

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.

[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 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 Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the committee will be released or remain in treatment. N.J.S.A.

30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the committee continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'utmost deference' and modified only where 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)). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of December 23, 2008.

Affirmed.

 

(continued)

(continued)

14

A-2463-08T2

RECORD IMPOUNDED

June 19, 2009