IN THE MATTER OF THE CIVIL COMMITMENT OF K.J.W. SVP-359-04

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0800-09T20800-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF K.J.W.,

SVP-359-04.

_____________________________________

 

Argued January 12, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-359-04.

Joan D. Van Pelt, Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

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

PER CURIAM

K.J.W. appeals from an August 11, 2008 judgment ordering his continued involuntary civil commitment in the Special Treatment Unit (STU) in Kearny as a sexually violent predator (SVP), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. K.J.W. was initially committed to the STU on March 18, 2004. We affirmed that order and the subsequent orders continuing his commitment entered March 7, 2005, and March 6, 2007.

Prior to the hearing resulting in the order under review, K.J.W. declined, on two occasions, to meet with the State's psychiatrist. When trial commenced, K.J.W. stated he changed his mind, agreed to participate in the evaluation and requested the hearing be adjourned. That request was denied. At the close of evidence, the court ordered K.J.W.'s continued commitment. K.J.W. urges reversal, suggesting the evidence submitted at that hearing failed to satisfy the statutory criteria. We affirm.

Under the SVPA, the involuntary civil commitment of an individual may be ordered 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 K.J.W.'s criminal history and the expert testimony presented by the State at the commitment hearing.

After being waived from juvenile to adult court, K.J.W. pled guilty to two counts of aggravated sexual assault while armed, N.J.S.A. 2C:14-2a(4), attempted aggravated sexual assault while armed, N.J.S.A. 2C:5-1, 2C:14-2a(4), armed robbery, N.J.S.A. 2C:15-1, and armed burglary, N.J.S.A. 2C:18-2. A November 12, 1993 evaluation, pursuant to N.J.S.A. 2C:47-1, concluded K.J.W. was not a repetitive and compulsive sex offender. On June 22, 1995, K.J.W. was sentenced to an aggregate term of fifteen years incarceration with a seven-and-a-half-year period of parole ineligibility.

The predicate offense occurred on May 19, 1992, when fifteen-year-old K.J.W. broke into the apartment of twenty-four-year-old D.U. and "ransacked" her home while she was away. Early the next morning, K.J.W. returned to D.U.'s home and found her in a bedroom asleep with her two young children. K.J.W. entered the bedroom, grabbed D.U. by the hair and dragged her, at knife-point, from her bed to the living room. Holding the knife to her throat, K.J.W. forced D.U. to disrobe, and he then attempted vaginal and anal intercourse. Thereafter, K.J.W. forced D.U. to perform fellatio.

After threatening to hurt her if she called the police, K.J.W. left D.U.'s apartment, only to return fifteen minutes later, again wielding a knife. K.J.W. demanded money and jewelry. D.U. surrendered two gold necklaces and "five or six dollars." K.J.W. then repeated his threats of harm to D.U. and her children and fled. During this second confrontation, K.J.W. mentioned the name of the shelter where he was staying, a fact, which ultimately led to his capture and arrest.

K.J.W.'s violent conduct continued while in custody. In August 1992, he was charged with two counts of aggravated assault against Bergen County Sheriff's Officers. In June 1993, he was charged with the aggravated assault of a Passaic County Sheriff's Officer and an inmate at the Bergen County Juvenile Detention Center.

K.J.W. was interviewed at the Adult Diagnostic and Treatment Center (ADTC), prior to his sentencing. The report noted K.J.W. lacked empathy, exhibited poor impulse control and insight, and attributed his numerous juvenile arrests to "boredom." He denied any recollection of the sexual assaults of D.U., claiming "I don't want to remember it." The ADTC evaluation concluded the offenses were "impulsive" acts of "antisocial violence, with no evidence of compulsive sexual urges." The clinical impression recorded was that K.J.W. was manifesting "early symptoms of a severe paranoid disorder and possible psychosis."

During his imprisonment, K.J.W. committed numerous institutional infractions and was twice placed in administrative segregation for incidents of sexually inappropriate behavior. In October 2000, he began masturbating in a prison closet. While doing so, he called out to a nearby female corrections officer and, when she arrived, "stood facing her with his pants pulled down . . . masturbating" and stated: "Come get this, it's all yours." He was found guilty and disciplined for making a sexual proposal or threat to a female corrections officer. In November 2000, K.J.W. proceeded to lie on the floor of a prison shower and masturbate in the presence of another female corrections officer, for which he was found guilty and disciplined for indecent exposure. Also, in June 2007, the concern was expressed by STU staff that K.J.W. was "attempting to arouse [an]other resident."

At the August 11, 2008 review hearing, the State's expert, Sara Gleacher, M.D., testified. Even though she had been advised that K.J.W. declined to be interviewed, Dr. Gleacher spoke to K.J.W. directly on August 4, 2008, to explain the purpose of the interview. K.J.W. stated he was surprised to see her because he had declined to be interviewed. After she renewed her request, he stated he would not participate.

Based upon a thorough review of K.J.W.'s criminal file, treatment records, and past evaluations, Dr. Gleacher concluded K.J.W. suffers from paraphilia not otherwise specified (NOS) and antisocial personality disorder. Dr. Gleacher supported diagnoses by relying on the evidence of K.J.W.'s history of past criminal incidents, including his many "interaction[s] involving sexual activity with nonconsent[ing] adults" and "disregard for the law . . . other people's rights and lack of empathy," and absence of expressed remorse. Illustrative of this conclusion was K.J.W.'s return to D.U.'s apartment a second time for the exclusive purpose of raping her, and the impulsive nature of the two prison masturbatory incidents. Dr. Gleacher also found as support for the paraphilia diagnosis in the prison exposure incidents, stating:

You're forcing that on someone. He had also engaged in multiple other kinds of infractions of a nonsexual nature and so, if he wanted . . . somehow to get put into administrative segregation or achieve that[,] he would have had multiple other ways of doing it.

. . . .

The fact that there were two [incidents] of this kind tells me that they were the result of an impulse rather than some kind of well-thought out plan. And that he had to perform these acts in order to relieve the impulse that he was experiencing.

Dr. Gleacher also discussed the relationship between the conditions -- antisocial personality disorder and paraphilia --and how they influenced K.J.W.'s emotional, cognitive and volitional functioning. The former condition enables the latter in that it constitutes

an inability to [] control impulsive behavior. [T]hat's relevant to sexual offenses because that's part of the problem, [] learning how to control impulsive impulses that are deviant in [] terms of sex offenses. And in an antisocial personality disorder that's just a main characteristic of what leads people to do things even though they know it might not be the right thing to do. But they go ahead and do it anyway. And lack of empathy is what allows people to do things that harm other people. And that also applies to sex offenses.

Noting these psychological conditions do not "spontaneously abate," Dr. Gleacher discussed K.J.W.'s refusal to engage in treatment, and his consistent denial of the offenses as additional contributing factors precluding "progress toward any kind of understanding of his behavior." Absent meaningful treatment, these behaviors will not be controlled.

Dr. Gleacher noted K.J.W.'s past scores on Static-99 assessments ranged from seven to nine, all of which are in the "high risk" range as a predictor of the likelihood of reoffense. Taking into account the combination of K.J.W.'s (1) past criminal sexual offense history, (2) diagnosed mental abnormalities and conditions, namely paraphilia NOS and antisocial personality disorder, and (3) lack of involvement in treatment resulting from his "complete denial" that he is a sex offender, Dr. Gleacher concluded K.J.W. was predisposed to commit sexual violence acts and was at "high risk" to sexually reoffend.

Dr. Nicole Palilo, a psychologist and member of the STU's Treatment Progress Review Committee (TPRC), evaluated K.J.W.'s therapeutic efforts during his confinement. Despite being a resident of the STU for over four years, K.J.W. had successfully completed only one phase of treatment and remains in Phase II, an "introductory phase" where residents are just "becoming acquainted with sex offender related concepts." K.J.W. attends group sessions regularly but "hasn't yet begun to discuss his [own] offenses," instead, focused on giving advice to others. K.J.W. "does not feel as though he is a sex offender." He denies any involvement in the rape and assault of D.U., believing instead that D.U. made up the story because if her "boyfriend found out [she had had consensual sex with K.J.W., he] would have been angry." Dr. Palilo cautioned K.J.W. "should understand that he will not likely advance through all of the phases and treatment if he does not address the factors that place him at risk for future sexually deviant behavior."

Under cross-examination, both witnesses acknowledged K.J.W. last committed an indecent sexual assault in 2000 and generally interacted appropriately with STU staff and other residents. Likewise, the experts conceded that the Static-99 assessment tends to overstate the degree of risk presented by juvenile offenders and that anti-social and other reckless behavior, as it has with K.J.W., tends to decrease with age.

K.J.W. did not testify or present any witnesses. At the close of evidence, Judge Perretti rendered her findings and conclusions in an oral opinion.

Judge Perretti found that while the extended period without sexually inappropriate or violent incidents was encouraging, K.J.W.'s lack of therapeutic progress over a four-year period was significantly more troubling. The court identified as impediments to K.J.W.'s progress his failure to accept responsibility for his actions and concomitant disinterest in all the sex offender specific treatment offered him at STU, noting that

he does not see himself as a sex offender and denies committing any sexual assault. He did not complete any of the treatment components assigned to him in the last TPRC report . . . . . He dropped out of the modules of self representation and relapse prevention. He did not attend any self help groups and refuses to take any polygraph test.

. . . .

Although [K.J.W.] has steadfastly denied committing the crime attributed to him while in the STU, he entered a plea of guilty [and] gave a detailed step by step statement as to what he did and the various sexual offenses committed against the victim all at [] knife point. The transcript includes several pages during which the sentencing judge [ ] inquired into the voluntary nature of the plea. A police report mentions that respondent prior to entering his plea had acknowledged his rape of the victim to a neighbor.

Although K.J.W. continued to attend group therapy, his participation was described as "minimal" and his therapy "unproductive." Judge Perretti continued:

The treatment notes make it perfectly clear that this respondent is a treatment refuser although he attends the lowest introductory level process group, he does not participate on his own account and insists that he does not need sex offender treatment[.]

The failure to progress in treatment therapy thwarts K.J.W.'s ability to control his offending behaviors.

Crediting the State's experts, whose evidence was "uncontradicted," the court found the State established K.J.W. remains a sexually violent predator subject to continued civil commitment at the STU. In this regard, the court found K.J.W. continues to suffer from diagnosed mental disorders, which do not remit but, which can be controlled with appropriate therapy. K.J.W. has consistently and continually refused to engage in therapy or even to acknowledge he has committed sexually violent crimes. This combination places him at high risk to commit a sexually violent offense if released. Judge Perretti concluded:

The court is clearly convinced that [K.J.W.] continues to be a sexually violent predator. He suffers from abnormal condition and personality disorder[] [t]hat combine[] to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior. It is highly likely that he will commit sexually violent offenses within the foreseeable future if not committed for further treatment or if he continues to refuse treatment for the protection of the public.

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 find no abuse of discretion in Judge Perretti's refusal to adjourn the review hearing based on K.J.W.'s newly expressed change of heart regarding his participation in the interview process. It was clear Dr. Gleacher personally spoke to K.J.W. and fully explained the need for her interview. The novel suggestion made at oral argument that an interview could have easily been accomplished in the courtroom ignores necessary safeguards, the need to afford Dr. Gleacher time to weigh and assess the information in light of K.J.W.'s documented history, and the prerequisite procedural process allowing the State and the defense to prepare for the hearing. Judge Perretti noted this was not the first time K.J.W. refused to cooperate in the process, making the suggestion that he misunderstood specious. We reject his request to vacate the judgment to allow a current psychiatric interview to be prepared.

Additionally, from our review of the record, we conclude the judge's findings are amply supported by substantial credible evidence presented at the review hearing. J.P., supra, 339 N.J. at 461; D.C., supra, 146 N.J. at 61. Accordingly, we affirm the judgment continuing K.J.W.'s civil commitment.

Affirmed.

(continued)

(continued)

13

A-0800-09T2

RECORD IMPOUNDED

February 1, 2010