IN THE MATTER OF THE CIVIL COMMITMENT OF J.S.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4297-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.S.W. SVP-168-01.

__________________________

December 29, 2010

Argued December 13, 2010 Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-168-01.

Jo Astrid Glading, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

David DaCosta, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

J.S.W. appeals from an April 28, 2010 order continuing his civil commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I

J.S.W. has a history of non-sexual criminal offenses, including conspiracy to commit robbery and several drug-related convictions. However, his sexual offense history began in September 1991, when he was arrested and charged with sexual assault. The charge was downgraded to simple assault and ultimately dismissed on February 26, 1992. He was arrested and charged with attempted sexual assault and criminal restraint on May 31, 1992. After the charge was downgraded to harassment and disorderly conduct, J.S.W. pled guilty and received a $100 fine. Both of these charges stemmed from reports made by a woman with whom J.S.W. was in a relationship at the time.

J.S.W. was arrested and charged with sexual assault, kidnapping and child abuse on September 8, 1992. The investigation began when the victim's sister approached the police to notify them that a man had forced her sister into an abandoned building. When the police approached the building, they heard a female screaming upstairs. They located J.S.W. and the victim, both naked, in a front bedroom. The victim, a 17 year old female, stated that J.S.W. had grabbed her by the arm and forced her up a staircase inside the building, where he sexually assaulted her. On December 9, 1992, J.S.W. pled guilty to sexual assault, and the remaining charges were dismissed. He was sentenced to a prison term of six years on July 30, 1993.

The predicate offense to J.S.W.'s civil commitment occurred on August 11, 1995. On that occasion, J.S.W. committed a violent sexual assault on D.P., a twenty-three old female acquaintance. On November 27, 1995, J.S.W. pled guilty to sexual assault and was sentenced to a term of six years with five years of parole ineligibility on May 28, 1996. After serving his sentence, he was involuntarily committed to the STU in 2001. We affirmed his initial civil commitment and his continued commitment after the first review hearing. In the Matter of the Civil Commitment of J.S.W., Nos. A-1085-02; A-1590-02 (App. Div. July 16, 2004).

J.S.W. stipulated that he continued to qualify for confinement under the SVPA, and Judge Perretti continued his commitment to the STU by order dated August 24, 2005. Judge Freedman found the State had provided clear and convincing evidence that J.S.W. continued to be in need of involuntary civil commitment and ordered his continued commitment at the STU on November 15, 2007. J.S.W. appealed Judge Freedman's decision, which we affirmed on June 10, 2008. In the Matter of the Civil Commitment of J.S.W., No. A-1510-07 (App. Div. June 10, 2008).

The current appeal arises from a March 15, 2010 hearing before Judge McLaughlin. The following evidence was presented at that hearing. Dr. Roger M. Harris testified as an expert in the field of psychiatry. He evaluated J.S.W. on March 4, 2010. In addition to this in-person interview, Dr. Harris considered TPRC reports, STU progress notes, prior forensic evaluations, and PSI reports in drawing his conclusions about J.S.W.'s mental health. Dr. Harris concluded that J.S.W. "meets criteria for civil commitment under New Jersey's SVP laws" based on his prior sexual assaults against young women, arousal to being in a position of control over women, and "his strong antisocial attitudes and behaviors."

Dr. Harris diagnosed J.S.W. with antisocial personality disorder, paraphilia NOS coercion, and anabolic steroid abuse.1 He gave J.S.W. a score of 4 on the Static-99R categorizing him as being at a moderate or high risk to sexually reoffend when released from prison. He opined, however, that the test underestimated J.S.W.'s actual likelihood to reoffend, "given his strong antisocial attitudes, behaviors and deviant arousal." While Dr. Harris acknowledged that J.S.W. has made progress in treatment, he also noted that his knowledge of his sex offense cycle was "rudimentary" only two years ago. J.S.W. had been in the STU for eight years, but Dr. Harris opined that he had not yet made sufficient progress to be released into the community. Dr. Harris focused on the fact that J.S.W. only recently (since 2008) set aside his control issues and became more assertive in his own treatment. He had previously expressed the opinion that J.S.W.'s main outside interest, weight lifting, could be perceived as "a way of 'acting out' allowing him too much time not applying himself, missing groups and maintaining a certain profile of himself, at the expense of treatment."

Dr. Harris testified that although J.S.W. acknowledged that D.P. did not consent, he greatly discounted his use of aggression in engaging in sexual relations with the women he assaulted. J.S.W. did not, in Dr. Harris' opinion, understand that he was physically coercive and not just physically imposing and intimidating.

Dr. Harris recommended that J.S.W. consider placement in the Therapeutic Community (TC), to assist him in addressing his tendency to resort to intimidation to get what he wants from others. J.S.W. expressed reluctance about the idea, but indicated that he would willingly go to the TC if a judge ordered him to go. Dr. Harris testified that his antisocial personality disorder and paraphilia predisposed J.S.W. to sexual violence, and "render[ed him] to still have serious difficulties controlling his sexual offending behavior." Although Dr. Harris acknowledged that "in the past year [J.S.W.] has engaged in treatment to a much greater degree," he nonetheless characterized J.S.W. as highly likely to reoffend if released.

Dr. Nicole Paolillo testified as an expert psychologist. She also authored the TPRC report issued on June 5, 2009, reviewing J.S.W.'s progress for the year. The committee of three unanimously recommended that J.S.W. remain in Phase 3 of the five phase treatment program.

The TPRC diagnosed J.S.W. with personality disorder NOS with antisocial features and steroid abuse. The committee gave him a diagnosis of rule out paraphilia NOS, non consent, meaning it was unclear whether he met the criteria for this diagnosis. "[H]is history of incarceration and his admissions of various unlawful acts and using women who were addicted for his own gratification indicate that his personality structure is heavily based on poor impulse control, disrespect for the law, aggression, lack of remorse, reckless disregard for the wellbeing of others, and failure to conform to social norms with respect to lawful behaviors." His multiple convictions for sexual assault indicate that he might have some arousal to rape, but his antisocial tendencies to take what he wants when he wants it could similarly have spurred the assaults.

The committee scored J.S.W. as a 5 on the Static-99R, meaning he is at a moderate to high risk of reoffending. On cross-examination, Dr. Paolillo noted that his score would now be reduced to a 4, because of his age, although his risk assessment would remain in the moderate to high range. Dr. Paolillo acknowledged that J.S.W.'s antisocial activities were clustered in his early 30s, but noted that antisocial tendencies do not "just go away automatically, and they followed people."

The TPRC recommended that J.S.W. remain in Phase 3, but suggested that he participate more in group therapy to avoid a demotion to Phase 2. The committee also recommended J.S.W. for placement in the Therapeutic Community. However, at the hearing, Dr. Paolillo testified that she was now uncomfortable with J.S.W.'s participation in the Therapeutic Community because of his ongoing problems with confrontation.

Dr. Christopher P. Lorah submitted a report and testified as an expert psychologist on behalf of J.S.W. Dr. Lorah disagreed with the State's experts, opining that J.S.W. does not suffer from antisocial personality disorder because there is no indication in his history that satisfied the necessary criteria of evidence of a conduct disorder prior to the age of fifteen. He did, however, diagnosis J.S.W. with personality disorder NOS with antisocial and narcissistic tendencies. He noted that although antisocial personality disorder is a chronic condition, it may "become less eviden[t] or remit as the individual grows older, particularly by the fourth decade of life." J.S.W. is fifty years old. Dr. Lorah opined that J.S.W. does not meet the criteria for paraphilia NOS non-consent.

Dr. Lorah testified that there was no evidentiary basis to support the conclusion that J.S.W. suffers from a mental illness or abnormality that affects his behavior and predisposes him to reoffend. He noted that "none of the diagnoses assumes volitional deficits." Furthermore, he did not place J.S.W. at a high risk of reoffending. He gave J.S.W. a score of 2 on the Static-99R, placing him in the low to moderate risk range for reoffending. Dr. Lorah gave J.S.W. one point for his 1993 prior sex offense, one point for his four or more prior sentencing dates, and one point for having unrelated victims; that score of 3 was reduced to 2 because of J.S.W.'s age.

Dr. Lorah noted on direct examination that J.S.W. acknowledged to him that he had sexually attacked his victims, and intimidated them into complying with his sexual demands. However based on his interview with J.S.W. and a review of his criminal and mental health history, Dr. Lorah nonetheless concluded that J.S.W. could be conditionally discharged with community supervision for life, continued sex offender treatment, urine analysis and other conditions that would further reduce his risk of reoffending.

On April 28, 2010, Judge McLaughlin issued an oral opinion concluding that J.S.W. should continue to be committed to the STU. Judge McLaughlin held that the State had proven by clear and convincing evidence that: (1) J.S.W. was convicted of a sexually violent offense (against 23 year old D.P. and another 17 year old victim); (2) J.S.W. suffers from an abnormality of personality disorder, as all three experts identified him as suffering from antisocial personality disorder or a personality disorder with antisocial traits; and (3) J.S.W. has "serious difficulty controlling his . . . harmful sexual violent behavior such that is it highly likely that he will reoffend in the reasonably foreseeable future."

In reaching his decision, the judge credited the testimony of the State's expert witnesses. Judge McLaughlin accepted the score of 4 on the Static-99R that Drs. Harris and Paolillo both gave J.S.W., instead of the score of 2 arrived at by Dr. Lorah. This score placed J.S.W. at a moderate to high risk of reoffending. He further found that J.S.W. "has not, at least not successfully, participated in treatment to moderate that risk." Judge McLaughlin noted that J.S.W's program requirements had not all been met, that he could not verbalize relapse prevention techniques, and that J.S.W. himself acknowledged that he might be unable to control himself in the Therapeutic Community. Therefore, he ordered that J.S.W.'s commitment be continued.

II

A criminal offender may be involuntarily committed 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. The State bears the burden to prove a threat to the health and safety of others because of the likelihood the offender will engage in sexually violent behavior "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 Civil Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address the offender's "present serious difficulty with control," and the State must establish that it is highly likely the offender will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The State has met its burden in this case. J.S.W. contends that the state did not present clear and convincing evidence that he was likely to commit acts of sexual violence if released from the STU. We disagree.

Our review of Judge McLaughlin's decision is "extremely narrow," and we must defer to the judge's decision unless the record shows an abuse of discretion. In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). As in all appeals from a trial judge's decision following a plenary hearing, we must defer to the judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 470-74 (1999). Applying those standards, we find no basis in this record to disturb Judge McLaughlin's decision.

Following a hearing at which he heard testimony from qualified experts, Drs. Harris, Paolillo and Lorah, Judge McLaughlin chose to credit the testimony of the State's experts rather than J.S.W.'s expert. That was the judge's prerogative, and the record provides no grounds for us to interfere with his credibility determination.

In his opinion, the judge considered J.S.W's extensive history of sexual and other criminal offenses and reviewed his current diagnoses of pedophilia, antisocial personality disorder and personality disorder with antisocial tendencies. Although the experts reached different conclusions as to J.S.W.'s risk of recidivism as indicated by the Static-99R test, Judge McLaughlin accepted Drs. Harris and Paolillo's testimony that their evaluation of his criminal history, progress in treatment, and psychiatric profile led to the conclusion that J.S.W. was at a high risk of reoffending. Based on these findings, the judge ordered J.S.W.'s continued commitment.

We find no abuse of discretion in this case. Judge McLaughlin properly considered the entire record of J.S.W.'s commitment in arriving at his decision, and evaluated only admissible evidence in coming to the conclusion that J.S.W. should remain committed at the STU. The trial court's decision is supported by substantial credible evidence, including testimony by two expert witnesses who agreed on their diagnosis of J.S.W. as suffering from anti-social personality disorder. Although J.S.W. has recently made significant progress in his treatment, he continues to minimize the amount of coercion involved in his offenses, does not take the floor to participate in group therapy, and is not fully receptive to the recommendation that he participate in the Therapeutic Community. The record does not support Dr. Lorah's recommendation that J.S.W. could be conditionally discharged without presenting a high risk of reoffending. See In re commitment of JJF, 365 N.J. Super. 486, 500 (App. Div.), certif. denied, 179 N.J. 373 (2004).

Affirmed.

1 The diagnosis of steroid abuse was by history only, as J.S.W. insisted that he was only involved in steroid use for a brief time while attempting to secure a football scholarship to college.