IN THE MATTER OF THE CIVIL COMMITMENT OF F.D. SVP-202-01

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5929-08T25929-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

F.D. SVP-202-01.

________________________________________________________________

 

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-202-01.

Joan D. Van Pelt, Deputy Public Advocate,

argued the cause for appellant (Ronald K.

Chen, Public Advocate, attorney).

David DaCosta, Deputy Attorney General, argued

the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

Appellant F.D. appeals from a July 29, 2009 order continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA or the Act), N.J.S.A. 30:4-27.24 to -27.38. More specifically, appellant, who was originally committed in 2001, asserts that the trial judge erred in finding that the State had proved by clear and convincing evidence that appellant was likely to commit a crime of sexual violence if he did not remain in the STU. 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 assess "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the petitioner 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 when reviewing a continuation of the commitment. In re Civil Commitment of E.D., 353 N.J. Super. 450, 454-55 (App. Div. 2002) (citing State v. Fields, 77 N.J. 282, 296 (1978)).

Appellant has an extensive history of committing patterned sexual offenses and other nonsexual crimes. The record reflects six sex-related arrests, five of which resulted in convictions.

In his first offense, appellant was arrested and charged on November 2, 1976, and later convicted on May 6, 1977, of carnal abuse and abduction and was sentenced to an eight year prison term with a five year parole disqualifier. The victim was appellant's former girlfriend. Appellant, the victim and her three children were in appellant's car; he was driving the four individuals home after a night of drinking. Reportedly, the victim began to call him "stupid" when he became lost, igniting his wrath, causing him to drive to a nearby park and order the victim and the children to exit the car and then drive away. Appellant denied sexually assaulting the victim, but admitted he "'would have slapped and raped her' if her children were not in the car."

In his second offense, appellant was arrested and charged on December 17, 1981, for sexual assault and robbery. On March 18, 1982, the charges were subsequently downgraded in the municipal court. The age and gender of the victim is unknown, as is the final disposition.

In his third offense, appellant was arrested and charged on August 4, 1982, with sexual assault, a charge that was eventually dismissed. The age and gender of the alleged victim are unknown.

In his fourth offense, appellant was arrested and charged on July 23, 1998, with resisting arrest and unlawful possession of a knife; he pled guilty to both charges. This charge involved an attack of a female victim who testified that appellant had pulled a knife on her in a parking lot, punched her and then raped her. Appellant stated that he was so drunk at the time of the incident that he did not know what had happened. Appellant was ultimately convicted of the resisting arrest and unlawful possession of a knife charges on February 13, 1990, and was sentenced to nine months imprisonment. However, despite the victim's allegations, appellant was never charged with any sexual offense.

In his fifth offense, the predicate offense for which the State moved for commitment to the STU, appellant, on April 17, 1997, was arrested and charged with criminal sexual contact, criminal restraint, aggravated sexual assault, terroristic threats, possession of a firearm for an unlawful purpose and unlawful possession of a firearm. Appellant pled guilty to criminal sexual contact and criminal restraint and was convicted on both counts on June 2, 1997, and sentenced to a term of three years. This conviction arose out of a January 10, 1997 incident during which appellant approached his victim, an adult female, while she was standing in front of a building and asked her for change. While conversing with the victim, appellant grabbed her by the neck, allegedly pointed a gun at her and forced her to perform oral sex on him. Appellant then forced the victim to the ground, removed her clothing and vaginally penetrated her with his penis. The victim testified that after appellant ejaculated inside her twice, he proceeded to strike her on the head with the gun several times before eventually fleeing the scene. At the time of his arrest, appellant was on parole for a 1995 conviction for receiving stolen property. Appellant denied that he had or used a gun during the incident.

In his sixth offense, appellant was convicted on February 2, 2001, of criminal sexual contact and aggravated assault, and was sentenced to a term of eighteen months. The victim in the case and her girlfriend, a friend of appellant, visited appellant at his apartment one evening. The three were drinking alcohol throughout the night. At one point, the victim fell asleep and her girlfriend left the apartment, leaving the sleeping victim alone with appellant. The victim later awoke to appellant attempting to remove her pants. When she told him to stop, he grabbed her throat and forced her to perform oral sex on him. Appellant then forcibly obtained the victim's consent to vaginally penetrate her with his penis by striking her arms with a stick.

Appellant was serving his sentence for his conviction for the fifth sexually violent offense when the State initiated a petition seeking to commit appellant, pursuant to the SVPA, just prior to the expiration of appellant's sentence.

The Act defines a "sexually violent predator" as a person who has been "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense". N.J.S.A. 30:4-27.26. A "sexually violent offense" can be any offense specifically listed as such in the SVPA. N.J.S.A. 30:4-27.26(a). It also can be "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b).

Here, the judge, after considering certifications filed by the Attorney General and clinical certificates of experts who had evaluated appellant, found that appellant's prior offenses constituted "sexually violent offenses" and on October 1, 2001, temporarily committed appellant to the Department of Corrections' STU for sexually violent persons, pending a final hearing. Following a final commitment hearing on May 7, 2002, the trial judge ordered appellant to remain in civil commitment, an order appellant appealed. Following an initial review hearing held on April 21, 2003, appellant's commitment was continued. On appeal, we remanded for reconsideration in light of W.Z., supra, 173 N.J. 109. After a remand hearing, appellant's commitment was continued. Appellant subsequently filed a second appeal, which was consolidated with his first, and we affirmed both the original commitment and the order continuing the commitment. In re Civil Commitment of F.D., No. A-4637-02 (App. Div. Dec. 11, 2009) (slip op. at 26).

Following a later July 24, 2009 review hearing, the trial judge found on July 29, 2009, that the State had established, by clear and convincing evidence, that appellant remained a sexually violent predator in need of involuntary civil commitment. He ordered the continuation of appellant's commitment and set a one-year review date, scheduled for July 19, 2010.

At the July 24, 2009 hearing, the State presented two expert witnesses - Dr. Marta Pek Scott, a pychiatrist and Dr. Jamie Canataro, a psychologist. Appellant proffered Dr. Christopher P. Lorah, as an expert in psychology. In addition to the expert testimony, the judge considered reports from each of the doctors, Treatment Progress Review Committee (TPRC) reports and treatment notes and arguments of counsel.

Psychiatric evaluations and expert testimony at trial revealed diagnoses of depression, polysubstance abuse, paraphilia NOS and antisocial personality disorder. Dr. Scott's diagnosis of paraphilia NOS, nonconsent type translated to appellant experiencing "intense sexually arousing fantasies, urges or behaviors that are involving the suffering or humiliation of others and are acted out with a nonconsenting partner." Dr. Scott also found that appellant suffered from amnestic disorder, indicating appellant was impaired in his "ability to learn new information[.]" Also finding appellant met the criteria of antisocial personality disorder and drawing from the likely effects of appellant's history of substance abuse, Dr. Scott opined that appellant was predisposed for future acts of sexual violence, as various diagnoses revealed that appellant had sexual urges and fantasies that cause clinically significant distress and impairment; his sexual offenses involved impulsivity and aggressiveness; appellant repeatedly violated parole and probation; his previous sentences had not deterred him from continued criminal behavior; and his account of his sex offenses was consistent with a lack of remorse. Dr. Scott concluded to a reasonable degree of medical certainty that appellant "continue[d] to suffer from a mental abnormality that affected his cognitive, emotional and volitional capacity, in a manner that results in serious difficulty in controlling his sexually-dangerous behavior, and predisposes him to commit future acts of sexual violence." Dr. Scott concluded that appellant continues to be at a high-risk to sexually re-offend, unless confined to a highly-structured environment, such as STU.

Dr. Canataro, who served on the TPRC panel, reached a similar conclusion. While reporting that appellant appears to now be able to "effectively implement anger management techniques as he has not had any outward physical displays of anger[,]" Dr. Canataro stated that appellant's anger was manifested in other ways by displaying low frustration tolerance and "distort[ing] everything he hears[]" and tends to become angry when he is denied something he feels entitlement to. Dr. Canataro's psychological testing results concluded that appellant did not seem to "meet the clinical threshold for the construct of psychopathy." However, she stated that appellant was determined to be at a high risk of sexual offense recidivism. Dr. Canataro, as did Dr. Scott, diagnosed appellant with paraphilia, NOS nonconsent, amnestic disorder and antisocial personality disorder along with substance dependency and mild mental retardation. As such, Dr. Canataro's diagnoses revealed that appellant "displays a pervasive pattern of disregard for and violation of the rights of others" and "a reckless disregard for the safety and wellbeing of others, failure to conform to social norms with respect to lawful behavior, difficulties experiencing empathy for others, and a lack of remorse."

Dr. Lorah, however, while diagnosing appellant with antisocial personality disorder, found an absence of paraphilia NOS and therefore stated that in his opinion appellant's violent sexual behavior was precipitated by stress anger and did not represent an obligatory condition for sexual functioning or arousal. Dr. Lorah stated that he believed appellant would not be highly likely to re-offend if he were released into the general community, noting that according to some literature the likelihood of sexual recidivism decreased after the age of forty. Specifically, Dr. Lorah estimated that the risk of appellant re-offending was between fifteen and twenty percent.

Judge McLaughlin, considering all the testimony and reports, found that the State had proven, by clear and convincing evidence, that appellant suffers from antisocial personality disorder and paraphilia NOS. The judge stated that while the defense's expert did not diagnose appellant with paraphilia, that diagnosis was supported by competent evidence on the record, finding specifically that it showed appellant "had an intrinsic and intense sexual urges and behavior that involves suffering and humiliation of the victim, particularly suffering of the victim, and he acknowledged himself that he prefers forcible sex where the victim resists". The judge concluded that the State had met its burden in proving that appellant currently had serious difficulty in controlling his criminally sexual violent behavior and is highly likely to re-offend in the reasonably foreseeable future. Agreeing with the testimony of both Dr. Scott and Dr. Canataro that appellant had not sufficiently integrated treatment principles to a point where his high-risk of re-offending was significantly mitigated, Judge McLaughlin ordered appellant to continue to be confined to STU for ongoing treatment.

Our 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 Commitment of 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 panel consists of doctoral level psychologists who evaluate treatment progress for committed sex offenders.

(continued)

(continued)

2

A-5929-08T2

RECORD IMPOUNDED

February 1, 2010