IN THE MATTER OF THE CIVIL COMMITMENT OF C.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1406-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.T. SVP-385-04.

April 16, 2012

Argued March 19, 2012 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-385-04.

Brian P. Hughes, Assistant Deputy Public Defender, argued the cause for appellant C.T. (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

C.T. appeals from the October 20, 2011 order continuing his involuntary 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.

C.T., who is now sixty, has been convicted of three predicate sexual offenses. See N.J.S.A. 30:4-27.26(a). On December 11, 1984, he was arrested for sexual assault upon his fifteen-year-old daughter, who became pregnant as a result. He eventually entered a guilty plea to second-degree sexual assault, N.J.S.A. 2C:14-2(a), on November 22, 1985, and was sentenced to seven years of imprisonment, subject to five years of parole ineligibility.

On August 19, 1989, C.T. was again arrested, this time for the digital penetration of the seven-year-old daughter of his girlfriend. As a result, on November 9, 1990, C.T. was convicted by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(a), and sentenced on July 12, 1991, to a four-year custodial term.

C.T. was arrested on June 25, 1998, on accusations that he had digitally penetrated both an eight-year-old girl and the seven-year-old daughter of his girlfriend, and fondled the buttocks of a ten-year-old girl. He subsequently entered a guilty plea to the second-degree sexual assault, N.J.S.A. 2C:14-2(a), of the eight-year-old child, and on June 15, 2001, was sentenced to eight and one-half years of imprisonment, subject to five years of parole ineligibility.

On December 20, 2004, C.T. was temporarily committed to the STU, based on the State's petition to declare C.T. a sexually violent predator. See N.J.S.A. 30:4-27.28. Since C.T.'s initial commitment on April 27, 2005, subsequent reviews have been conducted, and C.T.'s commitment continued on each occasion. He appealed the initial order of commitment, which was affirmed. In re Civil Commitment of C.R.T., No. A-4659-04 (App. Div. Nov. 16, 2006). He also appealed the January 9, 2009 order continuing commitment, which was also affirmed. In re Civil Commitment of C.R.T., No. A-4074-08 (App. Div. Oct. 13, 2009).

C.T. now appeals his most recent commitment order, issued after a hearing conducted on October 12 and October 20, 2011. During the hearing the State presented the expert testimony of two witnesses, psychiatrist Dr. Pogos Voskanian, and psychologist Paul Dudek, M.S., an STU staff clinical psychologist and a member of C.T.'s Treatment Progress Review Committee (TPRC). A psychologist, Dr. Christopher Lorah, testified on C.T.'s behalf. The court admitted into evidence Voskanian and Lorah's reports, C.T.'s TPRC report, and his STU treatment progress notes. Prior to his commitment to the STU, while imprisoned, C.T. had refused to participate in the Sex Offender Treatment Program at the Adult Diagnostic and Treatment Center (ADTC).

In preparation for his testimony and report, Voskanian conducted three interviews with C.T. and reviewed the State's petition for civil commitment, clinic certificates, ADTC records, psychological and psychiatric evaluations, TPRC and other treatment reports. He noted that the reoffenses following C.T.'s first term of incarceration demonstrated that C.T.'s pathology is "very deeply ingrained[,]" and "more complex . . . because . . . he would befriend a female who has a child, and the female would perform oral sex on him, and the -- the child would be the bonus." Additionally, he pointed out that arousal is more pathological with pedophiles when the victims are younger children.

C.T. reported to Voskanian that he was doing well in treatment, gaining in empathy, and "learning how to be at ease . . . ." During the interviews, C.T. emphasized his age on several occasions, aware that the Static-99 test measuring relative risk for sexual offense recidivism results are lower after age sixty. Although C.T. admitted to sexual arousal as a result of his fantasies of his seven-year-old victim, he asserted that he was able to "switch" to a healthier fantasy involving an age-appropriate female.

Voskanian opined that it is problematic that C.T. continues to masturbate to the images of children, and "tends to present himself in a better light . . . ." It demonstrates that C.T. was not "fully self-disclosing" and focused instead on presenting his mitigating factors. C.T. had not made substantial progress in treatment and had "only recently got involved with the . . . treatment community."

Voskanian's diagnoses of C.T. included "[p]edophilia, sexually attracted to females, non-exclusive type, and those are prepubescent females; with [p]olysubstance [d]ependence; [and] [p]ersonality [d]isorder with [a]ntisocial [t]raits . . . ." In his view, C.T. was highly likely to reoffend if discharged. Voskanian based his conclusion on "[c]haracterologic makeup, antisocial traits, disregard for others, culling others, like women, who he befriends and molests their children, very self-centered, substance dependence history and pedophilic arousal pattern that was unstoppable. He's unstoppable. Continues arousal to children, and continues acting out on his arousal." Voskanian affirmed that in this case C.T.'s age was not a significant mitigating factor and that C.T. was simply not significantly engaged in treatment.

Dudek testified about the TPRC's October 9, 2011 annual review report, which unanimously recommended that C.T. continue in Phase 3. That report, summarizing C.T.'s treatment, includes an oral and written report by his treatment team, a clinical interview with C.T., and all other material in C.T.'s file.

The TPRC report indicated that C.T. is an attentive and engaged participant in treatment. The report also described C.T. as having made "concerted efforts to present and discuss his sex offense cycle, relapse prevention strategies, and deviant arousal in groups." Despite C.T.'s progress in treatment, however, the TPRC report stated that he continues in the low-moderate risk category according to the Static-99R test.

The TPRC also diagnosed C.T. as suffering from pedophilia, attracted to females, nonexclusive; cannabis dependence; cocaine and alcohol abuse; and personality disorder NOS, with antisocial features. The pedophilia diagnosis results from C.T.'s sexual attraction to prepubescent children, which lasts over a period of more than six months. The characteristics were so powerful that C.T. engaged in sexually deviant acts "even though he . . . was fully aware of the possible potential consequences."

The TPRC noted that C.T.'s substance abuse contributed to the penetration of his biological daughter on multiple occasions. It "appears to act as a behavioral disinhibitor towards his sexual offending."

The report explained that the personality disorder NOS diagnosis "implies that [C.T.] suffers from a long-term maladaptive pattern of behavior involving a pervasive disregard for the wellbeing of others." Of necessity it includes an impaired ability to control impulses, failure to conform to social norms, and lack of empathy. Despite making progress, C.T. continues to struggle with deviant arousal issues that place his risk of recidivism at a level which warrants continued commitment.

Lorah interviewed C.T. on October 5, 2011, and twice in 2010. He also reviewed relevant documents in reaching his opinions. Although defendant had repeated the arousal reconditioning module, Lorah testified this did not significantly impact his assessment of C.T.'s risk, because C.T. "demonstrated satisfactory knowledge" of arousal reconditioning techniques. He opined that C.T. "easily identified his offense cycle, risky situations, victim empathy, and relapse prevention techniques." He stated that C.T. "last masturbated to thoughts of his youngest victim in 2010" and noted that on June 15, 2010, the TPRC disregarded C.T.'s treatment team's recommendation that he advance to Phase 4.

Lorah agreed with the diagnoses of pedophilia, sexually attracted to females, nonexclusive, and "begrudgingly" agreed with the personality disorder NOS diagnosis. He testified that C.T. was demonstrating "a much higher level of treatment understanding than appears in records." Lorah's risk assessment found C.T. to be on the moderate-low range on the Static-99R test. He disagreed with Voskanian's statement that C.T.'s knowledge that his score would decrease with age was troubling, as this knowledge was simply the natural outcome of his commitment to the facility. In his view, C.T.'s age was a mitigating factor based on studies finding that recidivism rates decline dramatically with age. Lorah acknowledged that C.T.'s pedophilic fantasies would not disappear, but he believed the behavior would decline significantly. Lorah agreed that C.T.'s polysubstance abuse would act as a disinhibitor of dangerous behaviors.

At the close of the hearings, the trial court found "by clear and convincing evidence . . . [t]hat [C.T.] suffers from a[] mental abnormality or personality disorder which makes the person highly likely to engage in acts of sexual violence if not confined in a secure facility . . . ." The judge also said C.T. "has difficulty in controlling sexually harmful behavior, such as it is highly likely that . . . if he is released that he will reoffend." Although the judge agreed that age is a mitigating factor, he disagreed that it made the risk posed by C.T. disappear. The court therefore continued commitment, and set the matter down for review in approximately one year's time. This appeal followed.

An involuntary civil commitment may follow the completion of a sentence 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(b).

In order to establish grounds for commitment, the State must prove that an individual poses a threat to the health and safety of others because it is likely he will engage in sexually violent acts. A committee must have "serious difficulty in controlling sexually harmful behavior such that it is highly likely that he . . . will not control his . . . sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002).

In rendering its decision, the court must address the committee's "present serious difficulty with control over dangerous sexual behavior[,]" id. at 132-33, and the State must prove by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 133-34. See also In re Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Annual reviews are mandated to determine whether the committee will be released or remain in treatment. N.J.S.A. 30:4-27.35. At those hearings, the State must prove by clear and convincing evidence that the committee continues to be a sexually violent predator as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. Release is warranted "when a court is convinced that [the committee] will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

Our scope of review is "extremely narrow[,]" and the trial court's decision should be given the "'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) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We search the expert testimony on the record to "determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 199 (1964)). We therefore affirm substantially for the reasons stated by Judge Pursel in his oral opinion of October 20, 2011.

A