IN THE MATTER OF THE CIVIL COMMITMENT OF E.S.T., SVP-249-02

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6454-08T26454-08T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF E.S.T., SVP-249-02.

___________________________________

 

Argued January 12, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-249-02.

Lewis Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

E.S.T. appeals from an order of August 12, 2009, 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.

Appellant, now forty-seven years old, committed three violent sexual offenses in a two-month period in 1985. In each incident, he broke into a home in the early morning hours where a young woman and her children were sleeping. In each incident, he threatened the woman with a weapon and sexually assaulted her. In at least two of the incidents, the children witnessed the threats if not the sexual assault.

On May 26, 1985, appellant entered a home in the early morning and, using a weapon, forced a twenty-two-year-old woman to perform oral sex on him. He then raped her vaginally. Two children, ages one and three, were present in the home.

According to a twenty-year-old victim, on July 25, 1985, appellant entered her home, pulled her hair as she slept, and, at knifepoint, demanded money. Appellant forced the victim into a room where two children, ages ten and three, had been sleeping. The victim pleaded with appellant not to hurt the children. He said he would not hurt them as long as she did not scream. He ordered her into a bathroom with the weapon at her throat, and forced her to perform oral sex on him.

On July 28, 1985, appellant entered another home in the early morning. The sixteen-year-old victim awakened to appellant on top of her, groping her sexually. He threatened to kill her and her children. The woman fought appellant and yelled. Appellant fled.

During the same time period, appellant physically assaulted and robbed two other women in public areas. On July 18, 1985, he pushed a woman down, punched her, and took her purse. On July 27, appellant and another man hit a woman in the stomach and took her purse and gold chains.

Appellant was arrested on July 30, 1985. He first denied the sexual offenses but admitted he could not sleep when high on methamphetamine and roamed the streets in the early morning hours. He also said he could not remember everything he had done but admitted entering homes and seeking money and sex from women. He claimed he did not use a knife, as the victims alleged, but that he usually broke off a car antenna and used it as a weapon. Despite being only twenty-two when arrested and incarcerated in 1985, appellant already had a significant record of criminal and juvenile offenses. His adult criminal record included burglary, larceny, criminal mischief, theft, resisting arrest, simple assault, and contempt.

Appellant was indicted on charges arising from the sexual assaults and robberies. On July 29, 1986, he entered into a plea agreement and pleaded guilty to sexual assault and attempted sexual assault arising from the May 26 and July 28, 1985 incidents and to second-degree robbery for the July 27, 1985 incident. He was sentenced to thirty years' imprisonment with fifteen years of parole ineligibility. Appellant served seventeen years in prison. Upon his release in 2002, he was immediately committed to the STU.

Under the SVPA, "[t]he Attorney General may initiate a court proceeding for involuntary commitment." N.J.S.A. 30:4-27.28c. "If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32a.

"Sexually violent predator" means a person who has been convicted . . . of a sexually violent offense . . . and 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.]

"'Mental abnormality' means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid.

"'Likely to engage in acts of sexual violence' means 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." Ibid.

"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 likelihood of his or her engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[T]he State must prove that threat 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." Ibid.

A person committed under the SVPA is afforded an annual judicial review hearing. N.J.S.A. 30:4-27.35. The "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding." In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (quoting State v. Fields, 77 N.J. 282, 295 (1978)). The trial judge must assess the offender's "present serious difficulty with control over dangerous sexual behavior," and the State must establish by clear and convincing evidence a high likelihood that the petitioner will offend again. W.Z., supra, 173 N.J. at 131-33. 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).

On June 4, 2002, before E.S.T.'s release from prison, the State filed a petition for civil commitment. The trial court heard evidence and committed him under the SVPA. He appealed, arguing insufficient evidence and reliance on inadmissible hearsay. We reversed the judgment of commitment because of improper use of hearsay opinions regarding appellant's diagnosis and likelihood of committing future sexual offenses, and we remanded the matter for a new hearing. In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004).

On remand, the trial court again committed appellant. He appealed again raising arguments regarding violation of constitutional rights, insufficiency of evidence, improper reliance on hearsay, and failure of the State to produce a psychiatrist who was a member of his treatment team. This time, we affirmed his commitment. In re Civil Commitment of E.S.T., No. A-3902-04T2 (App. Div. April 2, 2007). The Supreme Court denied his petition for certification. In re Civil Commitment of E.S.T., 192 N.J. 295 (2007). E.S.T. has remained civilly committed since his release from prison.

A review hearing was conducted on August 12, 2009, to determine whether appellant's commitment should continue or he should be discharged from the STU. E.S.T. was represented by counsel at the hearing but chose not to appear personally and presented no witnesses. Counsel for appellant and the State notified the judge that they had agreed to submit the case for review of documents rather than through live testimony. The documentary evidence included a forensic psychiatric evaluation report by Pogos H. Voskanian, M.D., and an annual review report of the Treatment Progress Review Committee (TPRC) completed by Christine E. Zavalis, Psy.D., clinical psychologist at STU. To support the reports, the treatment notes from STU were also available to the trial court.

Because appellant refused to be interviewed by Dr. Voskanian, his psychiatric evaluation was based on documents, including psychological evaluations and appellant's treatment records. In his report, Dr. Voskanian diagnosed appellant's psychiatric conditions as paraphilia NOS, polysubstance

dependence, antisocial personality disorder, and borderline intellectual functioning. Dr. Voskanian found that appellant had not "made any notable progress in treatment" since his commitment. Appellant had "not engaged into treatment and [had] not met any of his treatment objectives." He "continued to display a range of pathological behaviors." Dr. Voskanian concluded that appellant "has mental abnormalities and a personality disorder that places 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."

According to the TPRC report, E.S.T.'s "treatment trajectory has been slow with minimal progress." As of October 20, 2008,

[he] had not addressed any of the TPRC recommendations in treatment since the last TPRC meeting. He only took the floor twice during group during the review period and had not attended substance abuse groups. His group attendance was characterized as inconsistent and he "missed 19 out of 47 scheduled process group sessions." His group participation was characterized as attentive, supportive, and unproductive.

Both reports in evidence stated that appellant continued to deny the sexual assaults despite his prior admissions and plea of guilty. He admitted groping and kissing the sixteen-year-old victim and asking her to perform oral sex on him. He denied threatening her and also denied the other two sexual offenses. He minimized his criminal behavior and blamed others for his present circumstances. He had not completed and was not attending any new modules or self-help groups within the review period.

Dr. Zavalis's evaluation included written and oral reports from appellant's treatment team, which reported that appellant "does not demonstrate command over his sexual assault cycle. [He] only recently started examining the build up phase of his sexual offense cycle." The treatment team also stated that appellant does not have a relapse prevention plan and had "not yet demonstrated empathy and or remorse for his victims." His level of participation had increased somewhat in treatment as of June 2009, but he had "a tendency to victim-stance." He blamed his lack of progress in treatment on his cognitive limitations.

Appellant scored four on the Static-99 test, which places him in the moderate-high risk category for being charged or convicted of another sexual offense.

The TPRC diagnosed E.S.T. with paraphilia NOS (nonconsent) (provisional), polysubstance dependence, antisocial personality disorder, borderline intellectual functioning and mild mental retardation (provisional). The TPRC recommended that he remain in phase two treatment.

Based on the evidence contained in the reports, the trial court concluded that the State had met its burden of proof by clear and convincing evidence and that appellant "suffers from abnormality, personality disorder, particularly paraphilia and antisocial personality disorder, and presently has serious difficulty controlling his harmful sexually violent behavior." The court ordered that appellant's commitment continue.

The scope of appellate review of a trial court's decision is extremely narrow in a commitment proceeding. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The reviewing judge's determination should be accorded "'utmost deference' and modified 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) (quoting Fields, supra, 77 N.J. at 311).

Appellant argues that absence of progress in treatment is the result of his cognitive limitations. For example, appellant contends that his inability to read at an adult level hampers his ability to understand and take advantage of the treatment modules and self-help groups provided at STU. Inability to progress in treatment, however, is not grounds for discharge. The cognitive impairment that hinders appellant's treatment is further evidence of mental abnormality that, when coupled with his history of sexually violent offenses, makes his commitment appropriate under the SVPA.

Appellant engaged in a pattern of sexually violent conduct victimizing young women and children in their homes as they slept. Dr. Voskanian and the TPRC diagnosed appellant as suffering from paraphilia NOS, polysubstance dependence, antisocial personality disorder, and borderline intellectual functioning. Dr. Voskanian concluded that 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." The TPRC report concluded that appellant is in a moderate-high risk category of another sexual offense and should continue in phase two treatment. The record summarized here demonstrates that the trial court did not abuse its discretion in finding by clear and convincing evidence that appellant was likely to engage in acts of sexual violence if discharged and that his commitment should be continued.

 
Affirmed.

Paraphilia is defined as "a pattern of recurring sexually arousing mental imagery or behavior that involves unusual and especially socially unacceptable sexual practices (as sadism, masochism, fetishism, or pedophilia)." Merriam-Webster's Online Medical Dictionary, http://www.merriam-webster.com/medical/ paraphilia (last visited Feb. 9, 2010). NOS means "not otherwise specified."

Antisocial personality disorder is defined as "a personality disorder that is characterized by antisocial behavior exhibiting pervasive disregard for and violation of the rights, feelings, and safety of others starting in childhood or the early teenage years and continuing into adulthood, that is often marked by a lack of remorse for having hurt, mistreated, or stolen from others, and that in practice is often difficult to diagnose because it is confounded with disorders in which drug addiction or substance abuse is a factor called also psychopathic personality disorder." Ibid.

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A-6454-08T2

RECORD IMPOUNDED

February 23, 2010