IN THE MATTER OF THE CIVIL COMMITMENT OF T.M.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4385-06T24385-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.M.S. SVP-430-06.

_________________________________

 

Submitted October 14, 2009 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-430-06.

Ronald K. Chen, Public Advocate, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

T.M.S. appeals from a February 27, 2007 order requiring his involuntary civil commitment in the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. T.M.S. challenges the order of civil commitment arguing:

POINT I:

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT T.M.S. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

POINT II:

APPELLANT'S COMMITMENT IS PUNITIVE IN LIGHT OF THE FACT THAT HE SPENT MANY YEARS IN PRISON WITHOUT SEX OFFENDER TREATMENT BEING OFFERED TO HIM, WHILE THE STATE NOW APPARENTLY CONTENDS HIS PURPORTED CONDITION IS TREATABLE, AS SUCH T.M.S. SHOULD BE DISCHARGED FROM COMMITMENT (Not Raised Below).

After our review, we reject these arguments and affirm substantially for the reasons set forth by Judge Freedman in his comprehensive oral opinion of February 27, 2007.

Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a). An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "has been convicted . . . of a sexually violent offense . . . and 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 Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

With these standards in mind, we review T.M.S.'s criminal history and the expert testimony presented by the State at the commitment hearing. T.M.S. is now age fifty-seven. His first criminal conviction occurred in 1973, while stationed at an Air Force base in Shreveport, Louisiana. T.M.S. was charged with attempted murder when he fired three shots into a woman's vehicle, forced her off the road, and stole her purse. As a result of that incident, T.M.S. pled guilty to armed robbery. Also in 1973, T.M.S. impersonated a police officer and drew a weapon on his ex-girlfriend's boyfriend, handcuffed him, and beat him. Additionally, T.M.S. posed as a narcotics agent and assaulted another individual.

In 1974, T.M.S. followed a woman, entered her home and, while holding her at knifepoint, and threatening her life, as well as the life of her child, forced her to perform fellatio. He pled guilty to robbery and an aggravated crime against nature, for which he was sentenced to ten years in Angola prison in Louisiana. In 1976, after being moved to a minimum security facility, T.M.S. escaped. After surrendering to authorities, he was arrested four days later in Goshen, New York. T.M.S. was held for ninety days and released when Louisiana did not seek extradition.

His next sexual offense occurred on December 6, 1976. T.M.S. offered a woman a ride to a sandwich shop. Instead of dropping her off as stated, T.M.S. took the victim to an access road behind a Holiday Inn where he forced her to perform fellatio and other oral sex acts. He then raped her at knifepoint. T.M.S. stole the victim's money then released her from his vehicle.

When arrested, T.M.S. attempted suicide by stabbing himself in the stomach and chest. He claimed he does not remember the incident but believes he committed the offense and entered an Alford plea to rape. He was sentenced to a period of incarceration of six to twelve years. Defendant was returned to Louisiana to complete his initial sentence and, thereafter, delivered to New York to serve the sentence imposed for the rape. He was paroled in December 1984 and discharged from parole in 1988.

While on parole, T.M.S. became a Pentecostal minister. He met his wife, an attorney, through the church, and they married in 1985. Their two children were born in 1989 and 1992.

In 1988, T.M.S., while posing as a police officer, approached a young couple in a parked car. T.M.S. instructed the male to leave and instructed the victim to drive around the block. He then tried to convince her to get into his car, but she became suspicious and left. The victim filed a complaint; however, no charges arose from this incident.

The predicate offense occurred on November 5, 1989 in Paterson. A.Z., then age fifteen, and her boyfriend were parked in her boyfriend's car when they were approached by T.M.S., who posed as a police officer; he wore a badge on his shirt, had a spotlight attached to his vehicle, and appeared to speak into a radio in his car. T.M.S. asked the couple for identification, told A.Z.'s boyfriend to leave, and he would drive A.Z. home. He told A.Z. he was going to arrest her, searched her pocketbook, and took her keys. T.M.S. drove to an isolated location and forced A.Z. to perform fellatio. After he ejaculated, T.M.S. drove A.Z. home, and returned her keys. He told her he would kill her if she disclosed the incident. On December 3, 1989, he was arrested for this offense and released on bail.

On March 5, 1990, T.M.S. was arrested for criminal impersonation in Orange County, New York, arising from his conduct of "shaking down johns." He would find men with prostitutes, represent himself as a police officer, scare away the prostitute, and force the john to give him money. He pled guilty and was sentenced to three years probation.

Two months later, he was tried for the predicate offense. The jury convicted T.M.S. of two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), third-degree criminal restraint, N.J.S.A. 2C:13-2, and eight counts of terroristic threats, N.J.S.A. 2C:12-3(a). At his allocution, T.M.S. requested to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, as recommended by the Department of Corrections. The trial court rejected the request after finding T.M.S. did not believe he had a problem and requested to be sentenced at the ADTC to avoid prison rather than obtain treatment. The court imposed a cumulative sentence of thirty years incarceration with a fifteen-year period of parole ineligibility.

Both during and after trial, T.M.S. denied his involvement in the 1989 sexual assault. In an effort to obtain a retrial, T.M.S.'s wife secured a statement from A.Z. recanting her identification testimony. T.M.S. filed for post-conviction relief (PCR) and, following remand from this court, was granted an evidentiary hearing. At the PCR hearing, A.Z. unequivocally identified T.M.S. as her attacker. She explained she signed the affidavit recanting her identification, to stop T.M.S.'s family from "harassing" her. PCR was denied. This court affirmed the trial court's order.

In anticipation of T.M.S.'s likely release, the State filed a petition for involuntary civil commitment. A temporary order for commitment to the STU was entered by the Law Division on May 11, 2006, where T.M.S. has remained confined.

At the February 8, 2007 evidentiary hearing, the State presented the testimony of its two experts, Evan Feibusch, M.D., who testified regarding his psychiatric evaluation of T.M.S., and Natalie Barone, Ph.D., a psychologist, who testified regarding her testing and evaluation of appellant. T.M.S. testified on his own behalf and produced no expert testimony. The court also received over forty exhibits into evidence.

Dr. Feibusch diagnosed T.M.S. as suffering from paraphilia (nonconsensual not otherwise specified (N.O.S.)); polysubstance dependence, in remission in a controlled environment; and a personality disorder N.O.S. with anti-social traits. Dr. Feibusch testified the paraphilia diagnosis was based on T.M.S.'s history of convictions for sexually violent offenses, which were "planned rather than opportunistic." Further, he stated T.M.S. scored a six on the Static-99 test, reflecting a high probability of recidivism, had deviant sexual urges, was deceptive and impulsive, lacked remorse, and failed to believe he has a problem. Dr. Feibusch opined T.M.S. has an untreated mental disorder affecting him emotionally, cognitively and volitionally, which makes him unable to control his sexual urges and predisposes him to sexually re-offend. Dr. Feibusch also explained the personality disorder and substance abuse did not cause his history of sexual offenses but provided disinhibitors of the urge to commit such acts.

Although T.M.S. had been a model prisoner with no disciplinary infractions and a history of participation in programs including Alcoholics Anonymous, Toastmasters, Focus on the Victim, and other educational courses, he minimized and denied the extent and significance of his offenses. Therefore, until T.M.S. acknowledges his history and recognizes the need to confront this history and accept treatment, he is "highly likely" to reoffend.

Dr. Barone agreed with Dr. Feibusch's conclusions. She based her opinion on a lengthy personal interview, a review of T.M.S.'s treatment records and the results of objective testing, including the Static-99 on which T.M.S. scored a seven, suggesting he presented a high risk to reoffend. She diagnosed T.M.S. with personality disorder NOS with antisocial and psychopathic traits, based on a need for power and control. She determined T.M.S. led two separate lives: one as a criminal "shaking down johns," robbing and sexually assaulting women and the other as a minister, husband and father. Dr. Barone opined T.M.S. had a "compulsive need to act out his deviant sexual urges," had difficulty maintaining meaningful relationships, was aggressive, manipulative and experienced little anxiety from his anti-social acts. Dr. Barone also concluded T.M.S. suffered from a mental abnormality, which affected him emotionally, cognitively and volitionally and predisposed him to sexually re-offend. According to Dr. Barone, T.M.S.'s compulsive sexual deviancy coupled with his superior intellect and psychopathy made him predisposed to engage in sexual violence and placed him among those highly likely to reoffend.

T.M.S. testified. He admitted his transgressions while in the military and asserted he escaped from prison in Louisiana because he feared for his life. Although he still cannot recall the 1976 rape, he believed he committed that offense because "it fit his pattern." Following completion of the criminal sentence imposed for the rape, T.M.S. stated he was a changed man. He became a minister, married and started his family. He would "shake down johns" only because he needed money. Finally, he denied all involvement in the assault of A.Z., insisting he was not there.

Crediting the experts' testimony, Judge Freedman found the State had established by clear and convincing evidence T.M.S. continues to be a sexually violent predator and subject to continued involuntary civil commitment at the STU. He determined T.M.S. "had a lifelong history of engaging in these kinds of sexual crimes. He's very dangerous, there's no question about it in my mind." Judge Freedman further determined T.M.S.'s predisposition for sexual violence resulted from his abnormal mental conditions, which affect him cognitively, volitionally and emotionally. "If he were released now, he would have serious difficulty controlling his sexually violent behavior as he has his entire life, and to such a degree that he would be highly likely to be engaging in similar kinds of activity very quickly, certainly in the reasonably foreseeable future." The judge concluded T.M.S. needed to be committed, as he was "an untreated sex offender with a long, in-grained history of sexually offending[.]"

This court's review of these findings is extremely narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We accord a trial judge's determination "the utmost deference . . . 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). We modify an order "only where the record reveals a clear abuse of discretion." V.A., supra, 357 N.J. Super. at 63 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). This is not such a case.

Judge Freedman's opinion thoroughly reviewed the evidence, both documentary and testimonial, including T.M.S.'s assertions that he did not assault A.Z. He considered A.Z.'s prior recantation and assessed the circumstances for her execution of the affidavit along with her testimony during the PCR hearing that she was harassed by T.M.S.'s family. Moreover, the judge determined the uncontroverted testimony of the two mental health evaluators provided similar diagnoses and reached the same conclusion that T.M.S. is high likely to reoffend. We conclude from our review of the record that Judge Freedman's findings are well supported by the record, and we defer to those determinations.

T.M.S. also argues the SVPA, as applied to his circumstances, violates the ex post facto clauses of the United States and New Jersey Constitutions because he was denied the opportunity to serve his criminal sentence for the predicate offense in the ADTC. We have reviewed a similar argument in In re Commitment of W.X.C., 407 N.J. Super. 619, 632-39 (App. Div. 2009) and found it lacking merit. Application of the SVPA in this matter is civil in nature, with treatment as its substantial objective, and the statute does not restrict the offender any more than necessary. Id. at 635-39. T.M.S.'s constitutional challenge is, therefore, rejected.

In summation, following our review of the record, we conclude the trial court's findings are firmly supported by substantial credible evidence, and its legal conclusions predicated on those findings are consistent with controlling legal principles.

 
Affirmed.

Pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162, 171 (1970), "[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."

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2

A-4385-06T2

RECORD IMPOUNDED

November 5, 2009