IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W. SVP-279-02

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4405-08T24405-08T2

IN THE MATTER OF THE CIVIL COMMITMENT OF N.M.W. SVP-279-02.

_______________________________

 

Argued: October 28, 2009 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-279-02.

Patrick Madden, Deputy Public Advocate, argued the cause for the appellant N.M.W. (Ronald K. Chen, Public Advocate, attorney).

Mark Singer, Senior Deputy Attorney General, argued the cause for the respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

Appellant N.M.W. appeals from a judgment entered April 1, 2009, continuing his civil commitment at New Jersey's 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.

N.M.W., born March 8, 1982, was first committed to the STU on December 19, 2002. In re Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004) (slip op. at 1), certif. denied, 182 N.J. 429 (2005). N.M.W. was arrested as a juvenile on March 10, 1995, and charged with three counts of conduct that would constitute the adult offenses of aggravated sexual assault and luring or enticing a child. Id. at 2. These charges were dismissed on the State's motion, although his "probation was amended to require that he 'cooperate with DYFS in counseling for sexual problems' and '[h]ave no contact with victim.'" Ibid. The following year, N.M.W. was charged on three separate occasions with conduct that would constitute the adult offenses of criminal sexual contact and simple assault. Ibid. The victims were three juveniles living with N.M.W. at the Woodbridge Child Diagnostic and Treat ment Center (Woodbridge Center). Ibid. On August 28, 1996, the Woodbridge Center requested his detention at a juvenile deten tion center because he was "'physically aggressive, sexually aggressive and [making] terroristic threats.'" Id. at 3. The Family Part judge dismissed those charges without prejudice for six months on September 19, 1996. Id. at 3-4. Two evaluations diagnosed N.M.W. with emotional issues. Ibid.

N.M.W. was again arrested on December 22, 1997, for offenses committed against P.N. and R.N.W. Id. at 4. On that date, N.M.W. approached P.N. from behind, pointed a gun at her, forced her into a stairway of a building, and raped her. Ibid. Before fleeing the scene, N.M.W. punched, kicked, and choked her, then threw two bricks at her. Ibid. Later that day, N.M.W. approached R.N.W., robbed her, forced her to perform oral sex, and vaginally raped her. Id. at 4-5.

Jurisdiction of the Family Part was waived and the charges transferred to adult criminal court. Id. at 5. There, N.M.W. was charged with first-degree attempted murder, first-degree kidnapping, first-degree aggravated sexual assault, second-degree aggravated assault, third-degree terroristic threats, and fourth-degree possession of an imitation firearm for an unlawful purpose. Ibid. Pursuant to a plea agreement, N.M.W. pled guilty to one count of second-degree sex ual assault and was sentenced to a five-year prison term with a fifty-one month parole disqualifer. Ibid. His maximum sentence was to expire in November 2002. Ibid.

On October 22, 2002, the State filed a petition for civil commitment under the SVPA. Ibid. After a commitment hearing on November 19 and December 18, 2002, the trial judge concluded that N.M.W. was a sexually violent predator suffering from a mental abnormality and personality disorder. Id. at 8. The judge found that the State had established the requisite crite ria for civil commitment under the SVPA and, accordingly, ordered N.M.W. committed to the STU. Ibid. We affirmed the order of commitment on June 2, 2004. Id. at 33.

N.M.W.'s civil commitment to the STU was first continued on May 17, 2006, and we affirmed. In re Civil Commitment of N.W., No. A-4937-05 (App. Div. Jan. 22, 2007). His civil commitment was again continued on April 26, 2007, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4610-06 (App. Div. Nov. 15, 2007), certif. denied, 195 N.J. 418 (2008). The judge again continued N.M.W.'s civil commitment on April 16, 2008, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4434-07 (Nov. 18, 2008). The most recent annual review occurred on April 1, 2009.

At the April 1, 2009, hearing, the State called two wit nesses. The first witness, Dr. Pogos Voskanian, a psychiatrist, testified as an expert without objection. Based on his evalua tion of N.M.W. on March 11, 2009, Voskanian prepared a thirty-five page report upon which his testimony was based. He testi fied that N.M.W. has not progressed in treatment because "he is on [modified activity program] status all the time." Voskanian diagnosed N.M.W. with marijuana and substance dependence. He testified that such dependencies create a higher likelihood that an individual would "act-out in a sexually violent way when intoxicated." N.M.W. has not participated in substance-abuse treatment. Voskanian also diagnosed N.M.W. with paraphilia NOS, exhibitionism, and anti-social personality disorder. He reached two conclusions: (1) N.M.W. suffered from a mental abnormality or personality disorder which affected him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence; and (2) N.M.W. continued to pose a high risk of sexually reoffending in the foreseeable future unless he was confined to a secure facility for treatment. Voskanian acknowledged on cross-examination that N.M.W. has not struck staff members at the STU and there were no positive drug tests during the previous two years. Nonetheless, Voskanian opined that N.M.W. could not control his behavior in a way that would allow him to progress in treatment, particularly in light of N.M.W.'s disruptive behavior and various assaults on fellow residents.

The State's second witness was Dr. Rosemarie Valla Stewart, a psychologist who also testified as an expert without objec tion. Stewart, as a member of the Treatment Progress Review Committee (TPRC), reviewed the progress and treatment of N.M.W. Stewart prepared a TPRC report and testified as to its contents. Her testimony was also based on treatment notes regularly pre pared by STU professionals. Stewart testified that N.M.W. con tinually refused to engage in the treatment process at the STU. She diagnosed N.M.W. with paraphilia NOS (non-consent), exhibi tionism (provisional), impulse control disorder, anti-social personality disorder, cannabis dependence, and alcohol abuse. Stewart acknowledged on cross-examination that N.M.W. had participated in process groups during the previous year and enrolled in an anger-management module on one occasion. The TPRC recommended that N.M.W. remain in treatment and Stewart specifically testified that she thought it would be best for N.M.W. to remain in one location to create stability and consistency.

At the conclusion of the hearing, the judge found that N.M.W. "suffers from mental abnormalities and personality disor ders." He noted that N.M.W. has "had many disciplinary infrac tions," at least ten of which were sexual in nature, and been on modified activity status "on and off . . . at the S.T.U. since 2002." He found it "very clear" that N.M.W. suffers from paraphilia NOS (non-consent), anti-social personality disorder, and exhibition ism (provisional) and that he had no remorse for his crimes and had made zero progress in treatment. Indeed, he found that N.M.W. "has a pathological sexual orientation." Further, N.M.W. "does not have any . . . empathy into his victims, no regard for the law, no regard for societal norms."

The judge also found by "clear and convincing evidence that [N.M.W.] is highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment." This was based in part on Voskanian's testimony that N.M.W. "has a wide range of sexual interest, which means that he's a higher risk to re-offend." Specifically, N.M.W. "had the very violent rape of an adult woman and has had male victims, he's an exhibitionist. He's a much higher risk for that kind of conduct[;] [t]hat these kinds of problems, mental problems do not spontaneously disappear." Indeed, in the review period N.M.W. assaulted a resident in July 2008 and again in September 2008. On September 14, 2008, he was on the telephone with a fourteen-year-old girl and was observed masturbating.

The judge found "that despite all of the years that he's been in the S.T.U., despite all of the consequences, the sanc tions, that there hasn't been any change in [N.M.W.] in terms of . . . how he handles himself in terms of trying to get treatment that he needs." As such, the judge ordered N.M.W. remain civ illy committed in the STU, finding that the State met its burden of proof that N.M.W. is a threat to the health and safety of others. This appeal followed.

N.M.W. contends on appeal that there is no clear and con vincing evidence that he continues to meet the criteria for civil commitment, arguing that the weight of the evidence favors release. He asserts there was no evidence during the review period that he has a serious difficulty controlling his sexual conduct and his predicate acts were remote in time. He points out that he was evaluated at the Adult Diagnostic and Treatment Center (ADTC) before being civilly committed and that the ADTC did not find him to be repetitive and compulsive, an issue currently before the Supreme Court.

The decision of a trial court to civilly commit an individ ual pursuant to the SVPA is discretionary. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). As such, "[t]he scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow." Ibid. The trial court's determination should be accorded "utmost defer ence" and only modified upon a finding of a clear abuse of dis cretion. Ibid. (citing State v. Fields, 77 N.J. 282, 311 (1978)).

The judge was required to find "by clear and convincing evidence that [N.M.W.] needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). It is indisputable that N.M.W. is a sexually violent predator, as defined by N.J.S.A. 30:4-27.26. Equally indisputable is the fact that N.M.W. has a "mental condition that affects [his] emo tional, cognitive or volitional capacity in a manner that pre disposes [him] to commit acts of sexual violence." N.J.S.A. 30:4-27.26. The W.Z. Court explained that a mental abnormality or personality disorder is something that "must affect an indi vidual's ability to control his or her sexually harmful con duct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). "A finding of a total lack of control is not necessary. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality." In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div.) (citing W.Z., supra, 173 N.J. at 126-27), certif. denied, 192 N.J. 296 (2007). The evidence clearly and convincingly establishes that N.M.W. has such a mental abnormality or personality disorder.

The issues on appeal focus on the third element, "likely to engage in acts of sexual violence," which the SVPA defines as "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." N.J.S.A. 30:4-27.26. To satisfy this element, the State must prove by clear and convincing evidence that the indi vidual has a "serious difficulty in controlling his or her harm ful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 130. Those two concepts are intertwined, as the W.Z. Court explained:

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 likeli hood of his or her engaging in sexually vio lent acts. Pursuant to our holding today, the State must prove that threat by demon strating 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 incorporate a temporal sense that will require an assessment of the reasonably foreseeable future. No more spe cific 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 diffi culty with control over dangerous sexual behavior. The Act requires annual court review hearings on the need for continued involuntary commitment. Those periodic reviews will allow adequate opportunity to assess fresh information concerning the committee's dangerousness.

[Id. at 132-33 (citation omitted).]

The expert testimony supports the conclusion that N.M.W. is likely to reoffend if not confined in a secure facility. Vos kanian specifically found that N.M.W.'s mental abnormalities "place him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment." Similarly, Stewart stated in her report that N.M.W. "has made little, if any, progress in controlling his impulsiv ity and hypersexuality." Stewart specifically recom mended sev eral courses of treatment at the STU for N.M.W., further supporting the need for N.M.W. to remain committed.

Additionally, N.M.W. has consistently failed to participate in treatment at the STU. His failure to participate has prevented him from making any progress in dealing with his per sonality issues, impulse control, and hypersexuality. The TPRC, through Stewart, recommended that N.M.W. remain in treatment and consistently attend process groups to permit him to address his past misconduct and "redirect[] his young life in a positive direction."

This evidence clearly and convincingly supports the judg ment of continued commitment. The judge did not abuse his dis cretion in finding by "clear and convincing evidence that [N.M.W.] is highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment."

Affirmed.

In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 638-39 (App. Div.), certif. granted, 200 N.J. 475 (2009), where the ADTC psychologist determined that the committee was not a compulsive offender, although his sexually violent behavior was repetitive.

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11

A-4405-08T2

RECORD IMPOUNDED

January 8, 2010