IN THE MATTER OF THE CIVIL COMMITMENT OF W.J.S. SVP 409-05

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5558-08T25558-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

W.J.S. SVP 409-05.

________________________________________________________________

 

Argued January 12, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-409-05.

Peter W. Latimer, Assistant Deputy Public

Advocate argued the cause for appellant

(Ronald K. Chen, Public Advocate,

attorney).

David L. DaCosta, Deputy Attorney General,

argued the cause for respondent (Anne

Milgram, Attorney General, attorney).

PER CURIAM

Appellant W.J.S., a fifty-four-year old male, appeals from a June 18, 2009 order, continuing his involuntary civil 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.

The issue before us is limited. 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.

[T]he State must prove that 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.

[In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The trial judge must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish that it is highly likely that the committee 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, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The same standard applies on a review of the initial commitment. W.Z., supra, 173 N.J. at 133; In re Commitment of J.R., 390 N.J. Super. 523, 529-30 (App. Div. 2007).

These are the facts before the trial judge on the review hearing. On September 27, 1993, W.J.S. was convicted of three counts of aggravated sexual assault in the first degree, N.J.S.A. 2C:14-2a(1), and two counts of sexual assault in the second degree, N.J.S.A. 2C:14-2b. Appellant's conviction arose out of a series of sexual assaults. His son, W.S., reported to the Passaic County Prosecutor's Office that he had been sexually abused by his father, and appellant admitted that he sexually assaulted W.S. since he was an infant, performing fellatio on W.S. as well as anal penetration as frequently as three times per week.

Appellant further acknowledged sexually assaulting his nine-year old daughter, S.D., and his seven-year-old daughter, S.E., performing oral sex on his daughters approximately three times and twice per week, respectively. He also performed oral sex on his twenty-year old stepson, R.E.W., from when R.E.W. was six until he was eighteen years old.

Appellant further admitted to sexually assaulting: S.D.M.S., age nine, since she was four years old, by performing cunnilingus on her; S.M.V.S., during the summer of 1992 when she was five years old, by performing cunnilingus upon her; A.C.F.C., age five, when he was approximately one-and-a-half years old, by performing fellatio upon him; S.A.D.S., age three, when she was approximately six months of age, by performing cunnilingus upon her; and J.M.B.S., on one occasion during the winter of 1992 when the child was one year old, by performing fellatio upon the child.

Appellant had also been convicted of sexual offenses in 1976 and 1968; in both instances, appellant pulled down the pants of a four-year old girl and began touching her vagina. For the 1976 offense, appellant was sentenced to 201 days in the Passaic County Jail until placed in the Greystone Psychiatric hospital. For the 1968 offense, appellant was placed on temporary probation, given a 30 day psychiatric evaluation and committed to Greystone Psychiatric hospital, from which he was released in 1972.

Following appellant's 1993 conviction, he was found to be a compulsive and repetitive offender and was confined at the Adult Diagnostic Treatment Center (ADTC) in Avenel, N.J.S.A. 2C:47-1 to -3. In re Civil Commitment of W.J.S., No. A-4180-05T2 (App. Div. Mar. 10, 2008).

The State moved for appellant's civil commitment under the SVPA in April 2005. Ibid. We affirmed the trial court's findings, that appellant was a SVP and met the criteria for the SVPA. Id. at *8.

At appellant's June 17, 2009 review hearing, the State produced Dr. Pogos Voskanian, an expert in psychiatry, and Dr. Christine Zavalis, an expert in psychology. Dr. Zavalis, a member of the Treatment Progress Review Committee (TPRC), testified regarding the contents of appellant's March 30, 2009 TPRC report (TPRC report). Dr. Zavalis first testified that appellant is in Phase 2 of treatment, infrequently attended process group treatment and does not attend modules assigned to him. Appellant only began attending treatment on a more frequent basis when he was placed in treatment probation. When he did attend, however, appellant was a "silent participant"; he rarely offered feedback to others, appeared "guarded and hostile and defensive," did not self-disclose new information over his last six months and did not complete any new treatment components since his last TPRC meeting.

Appellant refused to discuss his history of sexual offenses when his cases were on appeal and refused to be interviewed by the TPRC. He scored a 7 on the Static-99 test, which places him in a category of being a high risk to re-offend. As a result of appellant's non-participation, appellant remains in Phase-2 of treatment.

Dr. Zavalis diagnosed appellant with: Axis I - pedophilia (sexually attracted to males and females, not limited to incest, non-exclusive type); cocaine dependence, in a controlled environment; psychotic disorder NOS; Axis II - personality disorder; NOS (with antisocial features); and borderline intellectual functioning. With regard to appellant's diagnosis of pedophilia, appellant "experiences recurrent, intense, sexually-arousing fantasies, sexual urges, or behaviors involving sexual activity with prepubescent children (typically 13 years old or younger)." Appellant also acknowledged daily crack-cocaine use from age 23 to 38; he claimed that he committed these crimes to support a drug habit and sexually offended while under the influence. Although appellant's diagnosis of personality disorder N.O.S. with antisocial features did not meet the full criteria for antisocial personality disorder, appellant exhibits "a disregard for the welfare of others, . . . disregard for the rules of society, unlawful behavior[,] . . . lack of empathy, . . . [and] lack of taking responsibility for his behavior[.]" Appellant also did not respond to the deterrent effects of incarceration, is resistant to authority figures, demonstrates no remorse for his actions and has not taken responsibility for his past behavior.

Dr. Zalavis further indicated that the TPRC report notes that appellant failed to "meaningfully and consistently participate in treatment, by taking floors to discuss his treatment issues in general and his sexual offending in particular." Moreover, "[i]t is unlikely that he will progress in treatment if he does not explore this set of offenses." Appellant must also enroll in Relapse Prevention 1 module when it becomes available and develop separate sex offense cycles, one for his familial victims and one for his non-related victims. Appellant is encouraged to enroll in substance abuse treatment, complete a sexual history questionnaire and complete an autobiography.

Dr. Voskanian addressed his May 18, 2009 scheduled psychiatric evaluation of appellant. Dr. Voskanian attempted to interview appellant for the evaluation, but appellant refused to be interviewed. The doctor noted that appellant's offenses are varied and extensive: "[o]ffenses against all ages; related, unrelated; both sexes, males and females; some incestual, some non-incestual." He also indicated that appellant is "over-invested into deviant sexual behaviors. He could not refrain from what he was doing. He could not modify his behaviors. And he continued to do what he was doing for years." Appellant abuses cocaine, marijuana and alcohol and "has not received treatment for practically anything."

Dr. Voskanian diagnosed appellant with: Axis I - pedophilia, attracted to boys and girls, not limited to incest, non exclusive type; schizoaffective disorder by history; psychosis NOS by history; Axis II - borderline intellectual functioning; personality disorder with antisocial traits; Axis III - history of seizures / stable off medications; hyperlipidemia; and rectal bleeding. Appellant was at "high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment." He "does not experience empathy or remorse, or has no regard for societal rules, and does not see the harm that he is causing for others, or does not care."

Based on the proofs before him, Judge McLaughlin determined, in a June 18, 2009 oral opinion,

that the [S]tate has proven clearly and convincingly that [appellant] is a[n] [SVP], suffers from abnormality of personality disorder, i.e., pedophilia, . . . personality disorder with anti-social traits, among others.

That he has serious difficulty in controlling his . . . harmful sexual behavior based upon his history, based upon the testimony of doctors and opinions of Dr. Voskanian, Dr. Zaval[i]s, and based upon the fact that he has not responded to sufficient treatment to be able to control that behavior, and that it is highly likely that he will not control his sexually violent behavior and will re-offend in the reasonably foreseeable future, which is borne out by the testimony of Dr. Voskanian and the Static-99 report and his history.

Accordingly, it is ordered that [appellant's] commitment to the [STU] be continued and that a review hearing be held on . . . June 3rd, 2010.

The scope of review of an order for commitment is limited and narrow. See In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We can modify the order "only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We do not find such an abuse in this case, as this record well supports continued commitment under the SVPA.

Affirmed.

The TPRC is a "panel of doctoral-level psychologists who evaluate the progress of the residents at the [STU] and make recommendations for treatment" on an annual basis.

The Static-99 test "is an actuarial instrument that looks at the static factors that are associated with risk to be charged with a new offense . . . or the likelihood that someone within this group might be charged at a later time with . . . a new sex offense." The Static-99 "includes things such as whether or not they've lived with a significant other for two years, how many charges or convictions they've had in the past, [or] if they've ever had convictions for violent behavior[.]"

(continued)

(continued)

2

A-5558-08T2

RECORD IMPOUNDED

February 8, 2010