IN THE MATTER OF THE CIVIL COMMITMENT OF C.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3050-09T23050-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.P. SVP-290-02.

________________________________________________________________

Argued May 24, 2010 - Decided June 2, 2010

Before Judges Lisa and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-290-02.

Joan Van Pelt, Deputy Public Advocate, argued the cause for appellant (Stefanie A. Brand, Acting Public Advocate, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant, C.P., now fifty-one years of age, appeals from Judge Mulvihill's July 23, 2009 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, appellant argues that the State failed to prove by clear and convincing evidence that he was highly likely to commit a crime of sexual violence if not confined to the STU. We disagree and affirm.

Appellant's history reflects a longstanding pattern of sexual and other criminal offenses. On July 8, 1974, appellant was arrested and charged with breaking and entry, larceny, making obscene telephone calls and soliciting sexual acts. On November 7, 1974, he was sentenced to one year of probation and was required to attend counseling. On February 4, 1980, appellant was charged with burglary, and on October 31, 1980, he was sentenced to one year of probation and fined. On April 16, 1981, he violated probation which resulted in continued probation, and subsequently, he violated probation a second time which resulted in a custodial sentence of three months. Further, on November 26, 1983, appellant was charged with harassment and fined.

On January 30, 1984, appellant met C.M. in a bar, and after C.M. left the bar in her vehicle, appellant followed her in his vehicle and ran her off the road. Appellant yanked C.M. out of her car by her hair and threw her into his car, and threatened her and restricted her from escaping. He then proceeded to rape and sexually assault C.M. Afterwards, appellant told C.M. that he was going to tie her up in a cellar for three days, but after he took her into his house, C.M. was able to escape and notified the police.

Appellant was arrested and charged with kidnapping in the first degree, criminal restraint in the third degree, terroristic threats in the third degree, and three counts of aggravated sexual assault in the third degree. After initially pleading not guilty to these charges on March 12, 1984, appellant retracted his plea on March 22, 1984, and pleaded guilty to kidnapping in the first degree, terroristic threats in the third degree and one count of aggravated sexual assault in the first degree. On August 3, 1984, appellant was sentenced to twenty years at the Adult Diagnostic and Treatment Center (ADTC) for the kidnapping conviction, a concurrent four-year prison term for the terroristic threats conviction, and a concurrent fifteen-year prison term for the aggravated sexual assault conviction. However, the judgment of conviction was subsequently amended on May 8, 1985, because the sentencing judge had intended to sentence appellant to twenty years for the aggravated sexual assault conviction with a twenty-year concurrent term for the kidnapping conviction, and these changes were made.

Appellant was transferred to East Jersey State Prison after nineteen months at the ADTC because he refused to participate in treatment at the ADTC. He completed his maximum sentence at East Jersey State Prison and was released from there on November 15, 1994. However, on October 8, 1996, A.S. was beaten and stabbed by appellant, who also attempted to sexually assault her. A.S., a self-employed masseuse, had gone to appellant's residence after he requested her services in response to a newspaper advertisement. While being massaged, appellant pulled a knife from under a pillow and began to choke and threaten A.S. A.S. was able to leave after scaring appellant into thinking that he might be caught, but had lost a lot of blood from knife wounds on her hand and needed forty-seven stitches and plastic surgery.

Appellant was subsequently arrested and on September 15, 1997, pleaded not guilty to aggravated assault, aggravated assault with a deadly weapon, possession of a weapon for unlawful purposes, unlawful possession of a weapon, certain persons not to have weapons, attempted aggravated sexual assault, criminal restraint, and terroristic threats. However, on November 3, 1997, appellant retracted his plea and pleaded guilty to aggravated assault in the second degree and attempted aggravated sexual assault in the second degree. These convictions were the result of the commission of sexually violent offenses as defined in N.J.S.A. 30:4-27.26. On February 6, 1998, appellant was sentenced to two concurrent nine-year prison terms to be served at the ADTC, and was sentenced to Community Supervision for Life.

Prior to maxing out his sentence on or about January 4, 2003, the State filed a petition seeking appellant's civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that appellant was a sexually violent predator and issued a temporary commitment order on December 20, 2002, authorizing his transfer to the STU pending a final hearing. A final hearing was held on May 14, 2003, and on the same day, the court found that the State's evidence established that appellant was a sexually violent predator and, as a result, the court ordered that he be remanded to the STU. Subsequent review hearings were held on May 5, 2004, November 9, 2004, August 16, 2005, August 10, 2006, May 30, 2007, and June 5, 2007, wherein the court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU.

Appellant appealed the court's decision of June 26, 2007. We affirmed on January 15, 2008, No. A-5851-06T2. A review hearing was subsequently held on July 9 and 23, 2009, wherein the court found that appellant continued to be a sexually violent predator and ordered that he remain confined to the STU. Appellant now appeals the court's decision of July 23, 2009.

At the July 9, 2009 hearing, the State presented the testimony of Dr. Rosemarie Stewart, a psychologist, who testified that appellant refused to participate in an interview with her and the rest of the Treatment Progress Review Committee (TPRC) to assess his progress in treatment. Nevertheless, Dr. Stewart testified that she was able to render her opinion within a reasonable degree of certainty based on a review of various documents, including police reports and past psychological and psychiatric evaluations, as well as from speaking with appellant's treatment providers. Dr. Stewart diagnosed appellant with sexual sadism, paraphilia NOS, depressive disorder and anxiety disorder, alcohol dependence, and abuse of cannabis and cocaine. She testified that appellant's depressive and anxiety disorders, as well as his drug and alcohol problems, do not necessarily predispose him to committing sexual crimes, but stated that drug and alcohol abuse and dependence can be a disinhibitor and play a role in the assault cycle in a person with appellant's urges.

Dr. Stewart noted that appellant had made some progress in treatment. She acknowledged that he has "an excellent knowledge of relapse prevention techniques and also a good understanding of his sexual assault cycle," that he had participated in group treatment and given feedback to other residents, that he had completed a significant amount of core treatment modules, that he had a good knowledge of arousal reconditioning and relapse prevention skills, and that he has recognized his risk factors. However, Dr. Stewart also noted that appellant's participation in treatment was somewhat inconsistent and that he needs to participate more, that he had psychologically relapsed in 2007, that he has a very high recidivism rating, and that he had been demoted from phase four of treatment to phase three in 2008 due to his progress. Dr. Stewart's report, prepared April 26, 2009 and admitted into evidence, was consistent with her testimony.

The State also presented the testimony of Dr. Marryanne DeSantis, a psychiatrist. Dr. DeSantis testified that she conducted an interview with appellant on July 1, 2009, during which appellant was very cooperative, and that she had reviewed various psychological and psychiatric reports, as well as appellant's treatment progress. She diagnosed appellant with sexual sadism, paraphilia NOS, an anxiety disorder, dysthymia, alcohol dependence, and antisocial personality disorder.

Dr. DeSantis testified that dysthymia is not related to appellant's sexual offending and that the anxiety disorder does not in and of itself predispose him to offending but that it can be part of the offending dynamic. However, she stated that his alcohol dependence can influence his offending, and that his antisocial personality disorder goes along with his offending. Overall, she opined that his diagnoses cause him to have a serious difficulty in controlling his sexual behavior.

Dr. DeSantis did testify that appellant knows he has made mistakes and wants to get better, that he has some insight into his sex offense cycle, that he has a good grasp of relapse prevention and arousal reconditioning techniques, and that he has made some progress in treatment. However, she opined that appellant still poses a high risk of recidivism, and stated that her opinions were given within a reasonable degree of psychiatric certainty. Dr. DeSantis' report, prepared July 6, 2009 and admitted into evidence, was consistent with her testimony.

Appellant presented the testimony of Dr. Jeffrey Singer, a psychologist. Dr. Singer met with appellant for an evaluation and diagnosed him with a depressive disorder, a personality disorder not otherwise specified but with antisocial and narcissistic features, and alcohol dependence and cannabis abuse, both in full institutional remission. However, Dr. Singer did not diagnose appellant with paraphilia or sexual sadism, explaining that appellant's history was not violent enough to warrant this diagnosis, that such a diagnosis must be made with caution, and that appellant had passed four polygraphs since his commitment.

Dr. Singer opined that his diagnoses do not cause appellant to have serious difficulty controlling his sexual behavior, and do not predispose him to commit acts of sexual violence. Dr. Singer did find some risk factors for recidivism, including appellant's history of sexual deviation, history of substance abuse, the physical harm to his victims, his use of weapons or threats, and a past supervision failure. Nevertheless, Dr. Singer found several substantial mitigating factors that suggested a low risk of reoffending, including appellant's age, that his treatment had progressed fairly well, and that he had not had any infractions while committed or any recent deviant fantasies.

As a result, Dr. Singer opined that appellant is in the lower end of moderate in terms of his risk of recidivism, that he can be treated on the outside, and that he would comply with discharge conditions. He therefore concluded that appellant was not highly likely to reoffend, and stated that his opinions were given within a reasonable degree of psychological certainty. Dr. Singer's report, prepared July 7, 2009 and admitted into evidence, was consistent with his testimony.

Judge Mulvihill's July 23, 2009 oral opinion thoroughly reviewed the documentary and testimonial evidence. After finding that Dr. Singer was not a credible witness, Judge Mulvihill concluded:

So I find that he has been it's been satisfied by clear and convincing evidence, convicted of sexually violent offenses, he suffers from mental abnormalities or personality disorders and clear and convincing evidence. That he's still highly likely to engage in further acts of sexual violence if not confined in a secured facility for control, care and treatment. I find that while he's made great pertinent strides, he has a way to go before he is no longer a threat to the health and safety of others. And if it's at the present time that's highly likely of his engaging in sexually violent acts. It's demonstrated by clear and convincing evidence that [appellant] has serious difficulty controlling sexual harmful behavior, highly likely he will not control his sexually violent behavior. Highly likely he will re-offend.

I find this to be a present serious difficulty with control and this has all been proven by the State by clear and convincing evidence.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128.

At the commitment hearing, the State must prove a 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. 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)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

We are satisfied that Judge Mulvihill's findings are well-supported by the record, and we defer to those findings. We affirm substantially for the reasons stated by Judge Mulvihill in his thorough and well-reasoned oral opinion of July 23, 2009.

 
Affirmed.

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

The degree on the aggravated sexual assault charge was an error which was subsequently corrected to first-degree.

(continued)

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A-3050-09T2

RECORD IMPOUNDED