IN THE MATTER OF THE CIVIL COMMITMENT OF D.G.Y.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4355-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.G.Y. SVP-283-02.

__________________________

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-283-02.

Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

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

PER CURIAM

D.G.Y. appeals from an April 16, 2010 judgment 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

The Law Division civilly committed D.G.Y. following his seven-year prison sentence for second-degree sexual assault. It was his third conviction for a sexually related offense. D.G.Y. pled guilty on April 2, 1996, to one count of second-degree sexual assault of a four-year-old girl, who was D.G.Y.'s grandniece. He molested the child on several occasions in April 1994 while the victim stayed with her grandmother. On one occasion, D.G.Y. removed his clothing in front of the victim. On another occasion, D.G.Y. removed the victim's clothing and made genital-to-genital contact with the victim. D.G.Y. subsequently admitted to police that he rubbed his penis on the victim's vagina.

D.G.Y. had a history of prior sexual offenses against children. In 1967, when he was fourteen years old, D.G.Y. was convicted and sentenced to probation for carnal abuse after he digitally penetrated his seven-week-old female cousin. In 1972, when he was eighteen years old, D.G.Y. again digitally penetrated a child, who was five years old. D.G.Y. pled guilty to debauching the morals of a minor on February 20, 1973, and was committed to the Adult Diagnostic Unit for an indeterminate term on August 31, 1973. D.G.Y. received parole on June 16, 1976. In addition to his sexual offenses, D.G.Y. has been charged a total of twenty-two times for non-sexual offenses and thirteen times for institutional charges while he was incarcerated.

The following evidence was presented at the April 16, 2010 hearing. The Treatment Progress Review Committee (TPRC), submitted an annual review report on February 26, 2010. A committee of two clinical psychologists recommended that D.G.Y. continue Phase Two of his treatment. The committee based its opinion on its interviews of D.G.Y. and his treatment team, progress reports and "all available information included in [D.G.Y.'s] STU file."

Dr. Shawn McCall, one of the two clinical psychologists on the committee, authored the report. The report indicated that D.G.Y. has "been marginally engaged in treatment for at least the last four years," but has experienced "some small improvement since being placed in a group for individuals with Developmental Disabilities . . . about three years ago." The committee added that "[D.G.Y.] appears to be developing some comfort and rapport with [his] treatment providers as evidenced by his finally coming to admit deviant sexual arousal to children." The committee recommended that D.G.Y. continue his current phase of treatment, but cautioned that placement in a lower phase should be considered if D.G.Y. "demonstrate[s] poor attendance to groups, disengagement in the treatment process, and aggressive behaviors during any treatment periods."

Consistent with the committee's evaluation, Dr. McCall testified that D.G.Y. should continue Phase Two treatment, which Dr. McCall described as "a rapport building phase wherein a person starts to acclimate themself [sic] to the treatment process" in preparation of "the major work of therapy in Phase Three." Dr. McCall recommended that D.G.Y. continue Phase Two treatment because "[D.G.Y.] continues to have difficulties controlling his impulses." Dr. McCall testified that D.G.Y. was placed in the Modified Activities Program (MAP) because he assaulted another resident in August 2008 and, in November 2008, assaulted a corrections officer and threatened a sergeant. D.G.Y. was allowed to return to his process group in March 2009, but was placed in temporary close custody in June 2009 after he threatened another resident. He returned to MAP and his process group the next day, but he pushed a corrections officer twenty days later and was not allowed to return to his process group until September 2009. Thus, Dr. McCall concluded, since August 2008, "there wasn't a whole lot of progress made."

Dr. McCall also shared his impressions of D.G.Y. after interviewing him. He testified that, although D.G.Y. "was definitely able to identify things that he should do [to control his anger], he doesn't appear to be able to follow through with them when needed, which is the concern." Dr. McCall, however, added that D.G.Y. has made some progress recently. Dr. McCall testified that, "for the last couple of months . . . since [the] report was generated, [D.G.Y.] has done fairly well as far as presenting his autobiography in group." Furthermore, Dr. McCall testified that D.G.Y. "has come around . . . to admitting that he has a deviant sexual arousal to female children." Dr. McCall explained that D.G.Y. exhibited "some trepidation about it before," but "it seems . . . he had come around to being more firm in it, his admission that he [is] aroused to children." Thus, Dr. McCall asserted that "it seems like [D.G.Y.'s] really just now starting to come to admit that there is a problem that he needs to work on."

Dr. McCall opined that D.G.Y. suffered from a mental abnormality or personality disorder which predisposes him to commit acts of sexual violence. Specifically, Dr. McCall diagnosed D.G.Y. with "pedophilia and antisocial personality disorder."

In his hearing testimony, Dr. Pogos Voskanian, a psychiatrist, agreed with Dr. McCall's diagnosis of D.G.Y.1 Dr. Voskanian testified that D.G.Y. demonstrated "a very ingrained and pedophilic pattern." Dr. Voskanian added that D.G.Y. exhibited a "deeper-seated orientation" toward pedophilia because he committed his first sexual offense when he was an adolescent. Furthermore, D.G.Y. committed repeat offenses more than twenty years apart, which "indicates the presence of a strong . . . urge and a fixed orientation towards children."

Dr. Voskanian also agreed with Dr. McCall's diagnosis of antisocial personality disorder. Dr. Voskanian testified that D.G.Y. "seems not to really realize what [are] . . . socially acceptable norms of behavior" and "remains quite aggressive, violent, disregarding others." These traits pertained to D.G.Y.'s predisposition to committing sexual offenses, because they "indicate lack of empathy, lack of remorse, and [an] inability to refrain from acting on impulses and urges." Dr. Voskanian also referred to D.G.Y.'s institutional behavioral record and said that "it points to [an] inability of [D.G.Y.] to control his impulses" and concluded that if D.G.Y. is "unable to control his behaviors that are likely to result in infractions or consequences, he is also not going to be able to control much stronger urges that [are] sexual urges."

Dr. Voskanian opined that D.G.Y. suffered from a mental abnormality or personality disorder that predisposed him to commit sexual violence. Specifically, Dr. Voskanian, like Dr. McCall, diagnosed D.G.Y. with pedophilia and personality disorder NOS with antisocial traits. Dr. Voskanian added that D.G.Y. "remains at [a] high risk" of recidivism.

In a comprehensive oral opinion issued on April 16, 2010, Judge Mulvihill concluded that D.G.Y. remained a sexually violent predator and ordered him to remain in involuntary civil commitment. The judge credited the findings of both expert witnesses and held that the State satisfied its burden of proving by clear and convincing evidence that D.G.Y. "continues to suffer from a mental abnormality or personality disorder" and "is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment." Although D.G.Y. demonstrated recent progress, the judge noted that D.G.Y. "continues to violate the rules at the STU [and] cannot keep his own aggressive behaviors in check." The judge concluded that D.G.Y. "has a present serious difficulty with control" and the State proved that "it's highly likely that . . . [D.G.Y.] will clearly reoffend, by clear and convincing evidence."

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).

On this appeal, D.G.Y. contends that the State failed to prove by clear and convincing evidence that he continues to present a high risk of reoffending if released. We disagree.

Our review of a civil commitment judgment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We "canvass the record inclusive of the expert testimony to determine whether the findings of the trial judge were clearly erroneous." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div. 2007), aff d, 197 N.J. 563 (2009). We give the "'utmost deference' to the trial judge's determination of the appropriate balancing of societal interest and individual liberty." Id. at 89 90. We will modify a civil commitment judgment only upon a finding that the trial court clearly abused its discretion. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

In the present case, the trial judge's findings are amply supported by unrebutted expert testimony. The experts testified that D.G.Y. continues to demonstrate difficulty controlling his impulses and behavior and remains in the early stages of treatment, having only recently admitted his sexual deviancy. Both experts asserted that D.G.Y. suffers from pedophilia and antisocial personality disorder and continues to pose a high risk of recidivism. D.G.Y. presented no expert testimony to the contrary.

A

1 Dr. Voskanian attempted to interview D.G.Y. in March 2010, but was unable to because D.G.Y. refused to speak with him. Dr. Voskanian, however, had interviewed D.G.Y. in 2008 and cited to his report from that meeting in his 2010 evaluation. In order to prepare his report, Dr. Voskanian also reviewed records including psychiatric evaluations by other doctors, clinical certificates, treatment progress reports, and Adult Diagnostic and Treatment Center termination reports.