IN THE MATTER OF THE CIVIL COMMITMENT OF G.M., SVP-196-01

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0797-09T20797-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.M., SVP-196-01

___________________________________

Argued January 12, 2010 - Decided February 9, 2010

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-196-01.

Lewis Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

G.M. appeals from a July 13, 2009 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

G.M. is a forty-seven year old male with a history of criminal behavior and sexually violent conduct. In the 1980s, G.M. was arrested and convicted, on separate occasions, for burglary, larceny, and simple assault. G.M.'s sexual offense history began in 1989, with his arrest for sexual assault, although that charge was later dismissed for unknown reasons. On May 24, 1989, G.M. was again charged with sexual assault. The victim was a six-year old who had been left in G.M.'s care. Allegedly, G.M. came out of the shower with a towel on, removed his towel, and began masturbating in front of the child, trying to put his penis in her mouth. It was also reported that on a separate occasion, G.M. touched the child's breasts over her clothing. On December 17, 1990, the charges were dismissed.

On November 12, 1992, G.M. was arrested and charged with aggravated sexual assault, sexual assault, criminal sexual contact, child abuse, and endangering the welfare of a child. The incident involved two infant girls, ages three and one, whom G.M.'s girlfriend was babysitting. The three-year old alleged that G.M. placed his finger inside her vagina, and attempted to touch the one year old until the child began to cry. On December 9, 1993, G.M. pled guilty to third-degree child abuse, and was sentenced to three years in prison.

The predicate offense for which G.M. is currently committed related to an October 24, 1997 arrest for aggravated sexual assault, sexual assault, endangering the welfare of a child, and child abuse. When G.M.'s victim, his daughter, was discovered to have venereal warts at age eight, she admitted that she had been sexually abused by G.M. four years earlier, in 1993. According to the victim, she was lying on her mother's bed reading a book when G.M. took off his clothes, pulled off the victim's pants, and penetrated her vagina and anus with his penis. When the victim began to cry, G.M. placed a sock in her mouth. G.M. also ejaculated in his daughter's mouth. The victim was fearful of reporting the incident because G.M. had told her he would "send her to the moon" if she told anyone. On September 16, 1998, G.M. pled guilty to second-degree sexual assault, and was later sentenced to a five-year term, to be served at the Adult Diagnostic and Treatment Center (ADTC), and to community supervision for life.

At the expiration of his sentence on September 13, 2001, the State moved for G.M.'s commitment under the SVPA. A temporary order of commitment was entered on September 6, 2001, followed by an order of commitment on July 8, 2002. A review hearing was held on March 14, 2003, at the conclusion of which the Law Division found that G.M. continued to be a sexually violent predator and ordered that he remain confined to the STU. G.M. appealed from this judgment, but the appeal was eventually dismissed. Subsequent annual review hearings have resulted in the continuation of G.M.'s commitment.

The present appeal arises out of G.M.'s most recent review hearing, which occurred on July 13, 2009, at the close of which the trial judge continued G.M.'s involuntary commitment. In anticipation of the hearing, reports were prepared by the State's experts. Dr. Howard Gilman, a psychiatrist, and Dr. Christine Zavalis, a psychologist. G.M. refused to be interviewed by Dr. Gilman, so Dr. Gilman relied upon documents customarily used by experts in the field in rendering his medical opinion. Dr. Gilman found that G.M. "has a number of risk factors for sexual reoffending. These include a personality disorder with antisocial features; a history of sexual reoffending; pedophilia; and, alcohol dependence." Additionally, Dr. Gilman found that G.M. "has made little to no use of sex offender specific treatment over the last 10 years" and is "currently on treatment refusal status." Dr. Gilman determined that G.M. "continues to be at high risk for sexual reoffending" and that, in his opinion, G.M.'s commitment should be continued.

At the hearing, Dr. Gilman testified that G.M. suffers from alcohol abuse, which renders him more likely to re-offend, since he was "drinking during the time of each of his sexual assaults" and has refused to attend substance abuse programming while at the STU. Dr. Gilman also found that "the fact that [G.M.] continues to have an untreated alcohol dependence, which has been controlled simply by his environment . . . is a risk factor for re-offending . . . since he has not attended treatment and presumably doesn't have the tools to remain abstinent of alcohol should he leave."

As for his sexual deviance, G.M. refused treatment for seven months prior to the hearing, and, prior to refusing treatment, G.M. made "little to no progress[,]" never passing "Phase-2 of treatment . . . and had been doing poorly in that treatment." In fact, G.M. has been demoted to Phase One, the entry stage, of treatment due to his lack of participation.

In discussing his diagnosis, Dr. Gilman opined that G.M.'s pedophilia is "a condition that does not spontaneously remit." Dr. Gilman also explained his diagnosis of personality disorder N.O.S. with anti-social features, as G.M.'s criminal history and antagonism toward his treatment providers "seem to . . . come together in a way that indicated a personality disorder and one in which it was best characterized by anti-social features." Dr. Gilman did note, however, that G.M. has avoided getting into any "trouble" while in the facility and is therefore "able to control himself in an institutional setting."

The State's other expert, Dr. Zavalis, is a member of the Treatment Progress Review Committee (TPRC), which compiled a report on G.M. on July 7, 2009. G.M. refused to appear for an interview with the TPRC, so the report was based upon "all available information included in [G.M.'s] STU file, and the written and oral reports presented by his treatment team representative on 5/20/09." According to the oral report of his treatment providers, "[G.M.] has exhibited long-term resistance to engaging in treatment." Moreover, according to the TPRC's written report:

[G.M.] has been on Treatment Refusal since January of 2009, although he was still attending group. He ceased attending groups altogether approximately 6 to 8 weeks ago. He has been provided the option of meeting with a treatment provider on an individual basis, but declined. . . . He rarely participated in group discussions, although he occasionally would "vent about victim of the system issues." . . . [G.M.] stated that he was "done with treatment." . . . A review of the treatment notes indicates that until he stopped attending group altogether, [G.M.] attended approximately 60% of process group sessions this year.

The TRPC found that G.M.

did not respond to the deterrent effects of incarceration, is resistant to authority figures, can be manipulative and deceitful, demonstrates no empathy for his victims or remorse for his actions, and has not taken responsibility for his past behavior. While at the STU, [G.M.] has refused to participate in any meaningful way in sex offender specific treatment.

Accordingly, the TPRC recommended that G.M. re-dedicate himself to treatment by participating in Treatment Orientation Group, Process Group, Substance Abuse Process Group, and additional treatment measures. This will require a greater degree of active involvement on G.M.'s part, as "before he was placed on treatment refusal, his participation was pretty much limited to anger-at-the-system issues."

Dr. Zavalis diagnosed G.M. with pedophilia, alcohol dependence and personality disorder NOS with anti-social features. She also rendered a provisional diagnosis of sexual sadism based on the level of violence and threats that accompanied G.M.'s predicate offense.

In addition, G.M. was tested on the "Static-99, which is an actuarial measure of risk for sexual offense recidivism." G.M. received a total score of six, placing him in the "High Risk Category for being charged or convicted of another sexual offense." His risk factors included a conviction for prior non-sexual violence, prior sexual offenses, prior sentencing dates, and unrelated victims.

Following the close of evidence, Judge Mulvihill issued an oral decision denying G.M.'s release on July 13, 2009. Finding the State's expert proofs credible, the judge determined that "there's clear and convincing evidence that [G.M.] is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment[,]" and that re-commitment is therefore necessary. The judge reasoned:

That [G.M. is] predisposed to sexual offenses, that he has made practically no progress in treatment in the past eight years here at the S.T.U. and prior to that at the -- in Avenel.

And his conditions do not spontaneously remit, but can only be treated by way of him engaging in treatment to mitigate. And he has made no progress towards that whatsoever, and appears to be withdrawing and not engaging in any kind of treatment, including substance abuse.

Accordingly, by order of July 13, 2009, G.M.'s involuntary commitment to the STU was continued, and his next review hearing was scheduled for July 6, 2010.

This appeal follows.

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. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of July 13, 2009.

 
Affirmed.

The judgment of conviction was amended on October 20, 1999, as it was determined that G.M. was not subject to Megan's Law, N.J.S.A. 2C:7-1 to -11, and therefore not sentenced to community supervision for life. However, on July 24, 2001, the judgment of conviction was again amended to reflect that G.M. is subject to Megan's Law.

The TPRC is "a panel of doctoral-level psychologists who evaluate the progress of each resident over the course of the past year . . . and throughout their time at the S.T.U., and make recommendations for the upcoming year for treatment."

According to Dr. Zavalis:

Personality Disorder, NOS refers to pervasive, persistent, maladaptive pattern of behaviors and inner experience that tends to have an onset in adolescence or early adulthood and manifest in at least two of the following areas: cognition, affectivity, interpersonal functioning, and impulse control. The antisocial features may include a pervasive disregard for the wellbeing of others, impulsivity, lack of remorse, poor decision making, low frustration tolerance, deceitfulness or conning for social pleasure, and failure to conform to social norms and lawful behavior.

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A-0797-09T2

RECORD IMPOUNDED