IN THE MATTER OF THE CIVIL COMMITMENT OF G.X.R.


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2624-09T22624-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF G.X.R.,

SVP-377-04.

____________________________


Argued July 13, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-377-04.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant G.X.R. (Yvonne Smith Segars, Public Defender, attorney).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant G.X.R. appeals from the January 20, 2010 order that continued his commitment to 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. We affirm.

On February 2, 2004, the trial court entered an order committing appellant to the STU. Appellant appealed, and we affirmed. In re Civil Commitment of G.X.R., No. A-4655-04 (App. Div. November 1, 2006). On January 31, 2007, the Supreme Court denied certification. 189 N.J. 429 (2007). On June 25, 2007, the court continued appellant's confinement to the STU. Appellant appealed and we affirmed. In the Matter of the Civil Commitment of G.X.R., No. A-5849-06 (App. Div. January 25, 2008). In October 2008 and May 2009, appellant stipulated to the State's proofs that he continued to be a sexually violent predator in need of involuntary civil commitment at the STU. The court next conducted a review hearing on January 5 and 15, 2010. On January 20, 2010, the court entered the order from which appellant now appeals. By agreement of the parties, the appeal is to be determined on the record as supplemented by oral argument, but without briefs.

On appeal, appellant argues that the trial court's decision, finding him a sexually violent predator, is not adequately supported by clear and convincing evidence in the record. He also contends that the court erred in not accepting the opinion of his testifying expert, Dr. Jeffrey C. Singer, that appellant need not be confined at the STU, but rather, may be released or discharged into the community on conditions. Because we find that the decision of the trial court is supported by credible evidence in the record, we affirm.

The SVPA "provides for the involuntary commitment of any person who requires 'continued involuntary commitment as a sexually violent predator.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 570 (quoting N.J.S.A. 30:4-27.32(a)), cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed.2d 361 (2009). The primary purpose of the SVPA is "to protect other members of society from the danger posed by sexually violent predators." Id. at 571. 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.

"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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[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 re-offend." Ibid. The court must be satisfied by clear and convincing evidence that such is the case at the time of the hearing. J.M.B., supra, 197 N.J. at 571. Simply stated, "'[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

Because the statement of facts and procedural history leading to appellant's initial commitment were fully set forth in our prior two unpublished opinions, supra, it is unnecessary to discuss them here. During the review hearing that is the subject of this appeal, the State presented testimony from Dr. Mary Anne DeSantis, a psychiatrist and Dr. Christine Zavalis, a psychologist, assigned to the Treatment Progress Review Committee (TPRC) at the STU. As previously stated, Dr. Singer, a psychologist, testified on behalf of appellant.

Dr. DeSantis diagnosed appellant as suffering from: pedofilia, nonexclusive type, attracted to females; exhibitionism; alcohol dependence (in a controlled environment); cannabis dependence (in a controlled environment); and on Axis II, with a personality disorder NOS, with strong antisocial and narcissistic traits. Testifying that appellant was in Phase III of treatment and acknowledging he is making progress in his treatment, the doctor opined that appellant has not proceeded far enough in treatment to lower the risk to sexually re-offend. The doctor stated that, based upon his risk factors, appellant remains at a high risk to sexually re-offend if not continued in confinement. Accordingly, she opined "he has made progress, but I don't think he is ready to be released to the community."

Dr. Zavalis testified that at the last review hearing in May 2009, the TPRC had been hopeful that appellant would have progressed in his treatment to where he could have moved to Phase IV of treatment in September of that year. However, because appellant has "not achieved that phase yet," she and the TPRC recommend that he continue in Phase III. Like Dr. DeSantis, Dr. Zavalis diagnosed appellant as suffering from: pedofilia (sexually attracted to females, non-exclusive type); hebephilia (exhibitionism; alcohol abuse and cannabis abuse - both in a controlled environment); and on Axis II, suffering from a personality disorder NOS (antisocial features). Although the doctor recognized appellant has demonstrated active engagement in his treatment, she also noted that he has "been described as argumentative, angry, and expressing victim of the system complaints." Additionally, the doctor noted that appellant "has a tendency to minimize his offenses and externalize blame." The doctor opined that appellant remains at a moderate to high risk to sexually re-offend.

Contrary to the opinions of Doctors DeSantis and Zavalis, Dr. Singer opined that defendant does not suffer from pedofilia. The doctor criticized the opinion of the TPRC that appellant should continue in Phase III of treatment at the STU, stating his belief that the TPRC is "just adding on for almost the sake of adding on the recommendations." He opined that the entity's mission has been accomplished in terms of appellant's gains and that he does not agree with the TPRC's recommendation that appellant needs "to have more treatment in a confined setting." The doctor based his opinion in part on the fact that appellant had successfully completed "a deviant arousal polygraph" in August 2008. It was the doctor's opinion that appellant is not "highly likely" to re-offend, and a need for appellant to be confined to in-patient treatment no longer exists. He believed that appellant could be released or discharged from the STU with or without conditions.

On January 20, 2010, the trial court rendered an oral opinion determining that appellant is a sexually violent predator in need of continued commitment at the STU. In deciding the matter, the court described the issue as one of "treatment effect"; that is, the TPRC believes appellant needs further treatment and that completing treatment will reduce the risk to sexually re-offend, whereas Dr. Singer believes appellant has "progressed to the point where he should be released." In deciding the issue, the trial court accepted the opinions of Drs. DeSantis and Zavalis that appellant suffers from pedophilia and is need of further treatment at the STU, and rejected the contrary opinion of Dr. Singer. Discussing Dr. Singer's prognosis, the trial court stated:

He said - - [Dr. Singer] said that in his opinion, you couldn't pass the polygraph that he passed and be highly likely. I reject that position. Polygraphs are not reliable. They do play a part in the treatment program, but they're certainly not reliable tests upon which experts can base their opinions.

So, I reject his use of it, and I reject his opinion that [G.X.R.] couldn't be highly likely [to re-offend] because he passed the polygraph. It's not the law of New Jersey, it's not the law of these cases, and I've never heard it expressed by any other expert ever before. But, as I said I think at the outset, I've been doing these cases going on 11 years.

He testified that he -- that he shows a good understanding of sex offender treatment ideas. And that's -- everyone sort of agrees with that. Now, he disagrees with the [TPRC]. He says he doesn't appreciate -- that they don't appreciate the dose effect that he's had. And that their recommendation is just adding on for the sake of adding on. He said he doesn't need more treatment in a confined setting.

Well, I disagree with that. I think Dr. Zavalis and -- and the psychiatrist both explain[ed] why he needs more treatment in a confined setting. And it's primarily dealing with applying his knowledge, of which he has a lot, to himself, which he has problems doing.

He testified about how he does risk assessment. He felt that he has a treatment effect which is impressive and sufficient. The [S]tate's witnesses disagree[,] and I credit the [S]tate's witnesses in this regard.

. . . .

I disagree with his diagnosis. I reject his view that there's no diagnosis of a paraphilia or a pedophilia in this case. I think that he's been diagnosed with this by many people in this record. And, clearly, the two experts who testified here diagnosed him. I credit their diagnosis in that regard and I . . . explain why. The doctor's view that he's not a pedophile I think is totally uncorrect -- incorrect.

He -- his view is he's only aroused to post- to peri-pubescent females, and that he's more about exposing himself. He's admitted arousal to 9-year-olds, 9- to 15-year-old. Arousal to 9-year-olds is pedophilia. He engaged in pedophilic activity in 1981. He's had contact offenses, although Dr. Singer tried to minimize those. And I find, clearly, he is a pedophile.

And, clearly, he does meet the criteria for commitment at this time because I think and I find that Dr. Singer has greatly [overestimated] the treatment effect. I think if the treatment effect were as he says it is, then perhaps he would be correct. But based on my review of the record, my review of the treatment notes, I'll refer to a few of them in a minute, he does not have the treatment effect that the doctor indicated he did.

On cross-examination, he acknowledged that there were three cases where it wasn't just exposing himself. And then on cross-exam is when I asked him whether his exposing himself to girls is sexual conduct, and he agreed with that.

So, I credit the testimony of the [S]tate's experts with regard to his -- his progression in treatment as opposed to that of Dr. Singer.

Our review of a trial court's decision in a commitment hearing is a narrow one. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). A judge is free to accept or reject, in total or in part, an expert's testimony. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). "A judge may assign to expert testimony only the weight to which it is entitled given its foundation." In re Civil Commitment of M.M., 384 N.J. Super. 313, 335 (App. Div. 2006). We accord the "utmost deference" to the trial court's determinations, and can only modify the same "where the record reveals a clear abuse of discretion." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 197 N.J. at 563 (2009). We have considered appellant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Freedman in his thoughtful opinion of January 20, 2010.


Affirmed.

Not otherwise specified.

(continued)

(continued)

10

A-2624-09T2

RECORD IMPOUNDED

August 2, 2010