IN THE MATTER OF THE CIVIL COMMITMENT OF M.Z.M. SVP-79-00

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5559-08T25559-08T2

IN THE MATTER OF THE CIVIL COMMITMENT OF M.Z.M. SVP-79-00.

_______________________________

 

Argued: October 28, 2009 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-79-00.

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

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

M.Z.M. appeals from an order for continued commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. M.Z.M. contends that the State has failed to show by clear and convincing evidence that his continued commitment is required. We affirm.

On May 24, 2000, the State first petitioned for civil com mitment of M.Z.M., alleging that he was a sexually violent predator. Fourteen years earlier, on August 25 or 26, 1986, M.Z.M. raped a woman at knifepoint. He was arrested the next day. He pled guilty to first-degree armed aggravated sexual assault and was incarcerated for about ten years before he was civilly committed to Ancora Psychiatric Hospital (Ancora), where he remained until the filing of the petition. Seven years prior to the predicate offense, defendant was convicted of aggravated assault and armed robbery in Georgia and was sentenced to ten years at the Rutledge Correctional Institute. He was released on September 14, 1984.

While at the forensic psychiatric hospital, M.Z.M. self-reported that he had raped at least twelve other females; he raped because women put him down; and rape was his method of revenge. While incarcerated M.Z.M. expressed his admiration for, and identification with, other rapists. His self-esteem is predicated on his identity as a rapist. He reported having little, if any, victim empathy and idolizes serial rapists.

During his civil commitment at Ancora, M.Z.M. was caught engaging in inappropriate sexual behavior with a developmentally disabled female patient on one occasion and on another occasion was found in possession of pornographic materials and toys. M.Z.M. also self-reported to clinicians at Ancora that when he was nine he threw a boy off a balcony because the boy was "mess ing around with his girlfriend." He also self-reported that he had a dangerous attraction to a female therapist while at the Adult Diagnostic and Treatment Center at Avenel (ADTC). Department of Corrections institutional records indi cate that M.Z.M. received at least four institutional charges while incarcerated, including one charge for a sexual assault on a mentally retarded female inmate at Ancora; for a threat to rape a female therapist at ADTC; and for throwing a chair at a female psychologist at Ancora.

On June 8, 2000, a judge temporarily civilly committed M.Z.M. to the State of New Jersey's Special Treatment Unit (STU) located in Kearny pursuant to N.J.S.A. 30:4-27.28. On August 8, 2000, the judge entered a final judgment of commitment following a hearing that day. Defendant's commitment was continued on August 6, 2001; August 6, 2002; July 31, 2003; April 13, 2005; and April 23, 2007.

Defendant appealed the July 31, 2003, continuation of com mitment. We affirmed that continuation, finding that the record overwhelmingly supported the trial judge's determination that the State established by clear and convincing evidence that M.Z.M. was a sexually violent predator who was highly likely to reoffend if discharged. In re Civil Commitment of M.Z.M., No. A-1001-03 (App. Div. Nov. 9, 2004) (slip op. at 4-7).

Defendant also appealed the April 23, 2007, continuation of commitment. We affirmed for the reasons expressed by the judge ordering the continued commitment. In re Civil Commitment of M.Z.M., No. A-1822-07 (App. Div. Jun. 25, 2008) (slip op. at 9).

The most recent civil commitment hearing took place on June 19, 2009. Dr. Pogos H. Voskanian, who had testified at the 2007 hearing, testified about his May 27, 2009, evaluation of M.Z.M. and his earlier 2007 evaluation. Voskanian's written May 29, 2009, report was also entered into evidence at trial. The defense stipulated to Voskanian's qualifications.

Voskanian testified that he relied on records and reports of other doctors who had examined M.Z.M. The other doctors' evaluations are referenced in Voskanian's report. Voskanian stated that he found the records particularly important because of M.Z.M.'s past violence, specifically referring to an instance when M.Z.M. "assaulted a mentally retarded female" while at Ancora.

Voskanian's report also includes M.Z.M.'s fantasy about raping a therapist while he was at ADTC. M.Z.M. said that he was "dan gerously obsessed with her," "that he would have raped the therapist if he had an opportunity," and that "[s]he needed to be raped." Voskanian acknowledged that, during his nine years in the STU, M.Z.M. had not been found "acting out" or being violent towards a woman.

Voskanian conducted an hour-long interview, in which M.Z.M. contradicted statements made during the current interview and previous interviews. When confronted with the inconsistencies, M.Z.M. acknowledged he was lying, failing to identify whether he was presently lying or had lied in the past. For instance, Voskanian testified that, between the current interview and past interviews, the number of sexual offenses that M.Z.M. admitted to ranged from four to twelve.

During the interview, M.Z.M. described torturing people and animals, and told Voskanian that he enjoyed inflicting pain on himself to relieve stress. Voskanian's report states that M.Z.M. appeared excited and joyful as he recounted killing ani mals, setting raccoons on fire, and torturing his cousins. The report quotes M.Z.M. as saying that "those were the best things in my childhood ... I think torturing others took my mind off getting abused by my father ... I loved watching others in pain ... I still have some cousins out there that I would love to torture."

M.Z.M. stated that he likes to "administer pain" and referred to himself as a sadomasochist during his evaluation. M.Z.M. told Voskanian about other, non-violent sexual fantasies and fetishes. Voskanian reported that it appeared that M.Z.M. talked about his fantasies "for the sense of stimulation and accomplishment" and he testified that M.Z.M. "enjoys talking about acts of violence . . . [and] sexual violence."

Voskanian testified that M.Z.M. "talks about [hurting oth ers] not only without regret or remorse, but he talks about it in a sense like bragging what he has done." Voskanian's report notes that M.Z.M. "denied having any plans to hurt anyone physi cally or sexually, however, [M.Z.M.] expressed that his unpredict able changes in emotional states can lead to potential violence."

Voskanian told the court that the statements made during the interview should be taken seriously in light of M.Z.M. hav ing been convicted for committing a brutal rape. Voskanian tes tified that, considering M.Z.M.'s statements and his past offense, "it makes me more concerned because he can as easily engage in another act of violence or sexual violence, and with out any regard, empathy, or anything to hold him back." Vos kanian also gave testimony regarding M.Z.M.'s cognitive abili ties, stating "I do not see significant cognitive problems in terms of IQ, . . . but more striking is his immaturity." Voskanian stated that M.Z.M.'s ability was "hard to define" because of his lack of effort on the cognitive tests.

While the report notes that M.Z.M. had recently made some progress in treatment, Voskanian testified that he did not believe that M.Z.M.

had ever taken his treatment seriously. He vacillates. Sometimes he attends two treatments . . . but most of the time, he does nothing, basically. He is on Phase 2, and relatively recent notes indi cated that [the] treatment team considered to demote [sic] him to Phase 1. Then he started going to groups and currently is still in Phase 2.

Voskanian testified that he did not believe that M.Z.M. completed any of the "modules" or participated in the self-help groups at the STU and that he has not done any of the written requirements.

Voskanian also testified that M.Z.M. showed no insight into his past offenses, and when asked what he had learned, M.Z.M. could only reply: "'Well, basically, I learned that it is not my decision to have sex. Woman says no, that's it. In my family, I was brought up differently. Women had no say. Now I know women have rights.'" Voskanian remarked that he thought that M.Z.M. was still in the "pre-initial stages" of treatment because M.Z.M. never made a meaningful attempt at treatment and sees himself as "somebody who would hurt, harm, rape, cause pain, inflict pain, [and] cause harm to himself."

Voskanian diagnosed M.Z.M. with paraphilia, NOS; sexual sadism; and personality disorder with borderline antisocial nar cissistic traits. Voskanian also diagnosed M.Z.M. with polysub stance dependence because of his extensive history of substance abuse. Voskanian testified that M.Z.M. "remains at high risk" for sexually reoffending if not confined in a secure facility.

M.Z.M.'s attorney acknowledged that M.Z.M. could not be relied upon in regard to his own history of violence, but asserted that the court should consider the lack of violence and "acting out" throughout M.Z.M.'s nine years at the STU. He argued that M.Z.M.'s talk of violence was merely "self-aggran dizing" and that Voskanian's testimony could not meet the State's heavy burden.

The judge reviewed M.Z.M.'s history, the findings of prior reports, and our most recent opinion. The judge found that the requirement for a sexually violent offense was satisfied in this case. Applying In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002), the judge noted there had to be clear and convincing evidence that M.Z.M. would "be predisposed and have serious dif ficulty in controlling his sexually violent behavior to such a degree that he would be highly likely to engage in such conduct within the reasonably foreseeable future."

The judge relied on Voskanian's testimony and the "earlier documents" referenced in Voskanian's report. Referring to State v. Fields, 77 N.J. 282 (1978), the judge "evaluate[d] the cur rent evidence submitted to him in light of all evidence produced in earlier proceedings." He also relied on Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501, 512 (1997), for the proposition "that past instances of violent behavior are an important indicator of future violent tendencies."

The judge also took into account M.Z.M.'s lack of progress in treatment, his inconsistent statements, and his fas cination with pain and violent behavior. The judge reviewed treatment notes from the STU, observing that M.Z.M. had been placed on and off "treatment refusal status." Ultimately, the judge found that there was "some progress in certain areas . . . [M.Z.M.] started to participate a little bit, but really has not progressed very far at all."

The judge found that the record and the testimony of Vos kanian provided clear and convincing evidence that M.Z.M. suf fers from a personality disorder and mental abnormalities. He concluded:

That [M.Z.M.'s] own admissions and his record show that they predispose him to engage in acts of sexual violence, and that they affect him in all three areas, emotion ally, cognitively and volitionally, to such a degree that if he were released, he would have, without question, serious difficulty controlling his sexually-violent behavior, and it's to such a degree that he would be highly likely within a very short period of time to engage in acts of sexual violence, in my view, well within the reasonably foreseeable future requirement of . . . the definition.

The potential for [M.Z.M.] to harm some one or kill someone is clearly there, and given the high propensity as testified to by the doctor, . . . of his likelihood of doing it, and the very, very severe nature of the impact, I have no hesitancy under the balancing test of W.Z. to . . . conclude that he's a very, very dangerous person who has . . . really not participated in treatment

And I think from the record clearly recently engaged because he's interested in being restored to his work income, or having his work income increased. I believe . . . on treatment refusal status, he doesn't make any income, so it seems pretty clear that [income] was his motivation for coming off treatment refusal status and engaging . . . in treatment.

Although he started to engage and per haps he can break through and really start engaging in treatment, which conceivably at some point could result in a conditional discharge. There's no basis for it at the present time.

The judge signed an order on June 22, 2009, finding clear and convincing evidence that M.Z.M was a "sexually violent predator in need of involuntary civil commitment." The order required that M.Z.M. be held until further review by the court on June 7, 2010. This appeal followed.

M.Z.M. contends on appeal that the judge erred in finding the State met its burden of proof by clear and convincing evi dence at this most recent review hearing, as required by Fields, supra, 77 N.J. at 291. He argues that he has never acted out, sexually or otherwise. He urges that his group placement demonstrates that he wants to improve, citing W.Z., supra, 173 N.J. 109. He contends that his score of five on the Static 99 index shows that he is less than fifty percent likely to reoffend and that his sexually violent offense occurred twenty years ago. Thus, he asserts that there is no present likelihood of reoffense.

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 Fields, supra, 77 N.J. at 311).

The judge was required to find "by clear and convincing evidence that [M.Z.M.] needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). It is indisputable that M.Z.M. is a sexually violent predator, as defined by N.J.S.A. 30:4-27.26. Equally indisputable is the fact that M.Z.M. has a "mental condition that affects [his] emo tional, cognitive or volitional capacity in a manner that predisposes [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 individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127. "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 M.Z.M. 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).]

A psychiatrist "may rely on actuarial as well as clinical information when formulating an opinion concerning future dan gerousness." In re Commitment of R.S., 173 N.J. 134, 137 (2002). However, judges are to regard such actuarial assessments "as simply a factor to consider, weigh, or even reject, when engaging in the necessary fact[-]finding under the SVPA." Ibid. (citation omitted).

Here, Voskanian opined that, if released, M.Z.M. presented a "high risk" of reoffending due to:

His sexual pathology, history of sexual offenses, lack of progress in treatment, . . . history of substance dependence, very superficial approach to his need for treat ment, no ability to express empathy or remorse, and continuous disregard for treatment.

And . . . he did not receive treatment neither for sex offending, nor for substance dependence, nor [does] he attempt[] to work on his personality issues. Like lying, for example, and admitting to lying is done in the most remorseless manner. He . . . does not take the whole seriously, basically. The treatment, him being here, victims, harming others, the entire spectrum of things is . . . not serious for [M.Z.M.].

Defendant's Static 99 score, as the R.S. Court made clear, is only one factor to be considered in determining likelihood of reoffense. Ibid. It is not determinative, nor is compliance with institutional behavioral mandates, although that too is a factor to be considered among many others.

The judge found from Voskanian's opinions, the treatment records, and M.Z.M.'s own admissions that there was clear and convincing evidence that M.Z.M., if released, would "have seri ous difficulty in controlling his . . . sexually violent behavior." W.Z., supra, 173 N.J. at 130. Such a finding is particularly compelling because of M.Z.M.'s statements regarding torture, his inability to control his emotions, and his desire to harm his cousins. The judge found that such lack of control showed that reoffending was reasonably foreseeable and highly likely.

Applying our limited scope of review to the judge's find ings and conclusions based on the evidence before him, we find no mistaken exercise of discretion in the continued commitment of M.Z.M. The State proved by clear and convincing evidence each of the elements necessary to continue commitment under the SVPA.

 
Affirmed.

(continued)

(continued)

15

A-5559-08T2

RECORD IMPOUNDED

January 11, 2010