IN THE MATTER OF THE CIVIL COMMITMENT OF J.L.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1476-11T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.L.E., SVP-238-02.

_________________________________

December 24, 2012

Argued August 6, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-238-02.

Brian Patrick Hughes, Assistant Deputy Public Defender, argued the cause for appellant J.L.E. (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

Appellant J.L.E. appeals from an order of judgment entered on September 12, 2011 continuing his civil commitment to the Special Treatment Unit (STU), a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following our careful review of the record on appeal, we affirm.

The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators[.]" In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71, cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009) (citing N.J.S.A. 30:4-27.25). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as:

a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission 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.]

"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that '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.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26).

Involuntary commitment requires the State to prove by "clear and convincing evidence that the individual poses a threat to the health and safety of others[,]" J.M.B., supra, 197 N.J. at 571 (internal citation and quotation marks omitted), because of a "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 the reasonably foreseeable future. W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, U.S. , 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33.

"Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). See also In re Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (explaining that finding that a person is a sexually violent predator requires "[p]roof of past sexually violent conduct," as well as "proof of [a] present mental abnormality or personality disorder" (citing W.Z., supra, 173 N.J. at 127)).

Appellate review of a commitment under the SVPA is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have recognized that "'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), certif. denied, 192 N.J. 296 (2007). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630. A reviewing court must "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

The record reveals that forty-year-old J.L.E. has committed numerous offenses which qualify as "sexually violent offenses." N.J.S.A. 30:4-27.26. In 1989, he was arrested after he allegedly engaged in criminal sexual contact with his grandmother. Although the charges were subsequently dismissed, he was placed in a foster home. Two years later, he was arrested in connection with an attempted rape of a forty-six-year-old woman. He was convicted of this offense and sentenced to a six-year custodial term but was paroled in 1996. While on parole, he was arrested and charged with terroristic threats and attempted sexual assault of his seventy-five-year-old great aunt. He pled guilty to this offense and was sentenced, following an evaluation at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, to a seven-year term, which was to be served at the ADTC. The evaluation diagnosed J.L.E. as suffering from paraphilia NOS (not otherwise specified), alcohol dependence, mild mental retardation and antisocial personality disorder.

On March 13, 2002, the State filed a petition for his involuntary commitment to the STU on grounds that he was a sexually violent predator. In support of its petition, the State relied on J.L.E.'s attempted sexual assault conviction as well as his reported prior history of sexual and other criminal offenses committed while a juvenile. Following a hearing, the court declared that J.L.E. is a sexually violent predator and committed him to the STU, a secure facility, where he could be controlled, cared and treated.

Since his initial commitment, J.L.E. has been subject to multiple review hearings, and after each hearing, the trial court found he satisfied the requirements for continued commitment. We affirmed each decision. See In re Civil Commitment of J.L.E., No. A-1897-02 (App. Div. April 24, 2006); In re Civil Commitment of J.L.E. No. A-6318-05 (App. Div. March 20, 2007).

The present appeal arises out of J.L.E.'s most recent review hearing, which occurred on September 11, 2011, at the conclusion of which the trial judge continued J.L.E.'s involuntary civil commitment. On appeal, J.L.E. argues that the State failed to prove, by clear and convincing evidence, that he meets the criteria for continued civil commitment under the SVPA. He also contends that the trial court erred in determining he posed a high risk to reoffend in light of his progress in treatment.

As his counsel noted during the hearing, in his nearly nine years of civil commitment, "there's only been one meeting between [J.L.E.] and the social work staff. And that was court ordered. That was in return for [J.L.E.] giving up his right to a yearly review hearing, and interacting with the court." At the hearing, the State presented the reports of Dr. Rosemarie Vala Stewart, a psychologist, and Dr. Pogos Voskanian, a psychiatrist.1 Both doctors noted that J.L.E. has responded more positively to treatment but that he remains in his current phase of treatment, Phase Three, which is the core phase of treatment, because his overall record during the preceding year presented "mixed" results.

Dr. Stewart, noted, for example, that J.L.E. only admitted to committing the index offense with his great aunt, while denying the attempted sexual assault of his grandmother, his mother and the 1991 incident. The doctor diagnosed J.L.E. as suffering from paraphilia NOS, alcohol dependence (in a controlled environment), cannabis abuse, personality disorder with antisocial features, borderline intellectual functioning, and mild mental retardation (provisional) (by history). She concluded that J.L.E. needed to increase the level of his participation in group and she found there were unresolved discrepancies in his offense history, which she opined would subject him to serious challenges in a therapeutic community setting.

Dr. Voskanian conducted a ninety-minute interview of J.L.E. and prepared a report that included his review of numerous records. He found that J.L.E.'s presentation in this most recent interview was not noticeably different from prior clinical interviews he had conducted in 2009 and 2010. The doctor diagnosed J.L.E. as suffering from paraphilia NOS, marijuana and alcohol abuse, both of which were in remission due to institutionalization, antisocial personality disorder, borderline intellectual functioning and fetal alcohol syndrome, and his incarceration will severely affect the diagnosis, treatment and prognosis of his mental disorders. He expressed the opinion that J.L.E. was predisposed to sexual violence, noting in particular the absence of empathy and remorse, and the propensity to blame the victims for his own offenses. He opined these conditions would not spontaneously remit, nor be mitigated by treatment. He concluded, within a reasonable degree of medical certainty, that J.L.E. met the qualifications for the definition of having a mental abnormality and personality disorder that placed J.L.E. at a high risk to engage in acts of sexual violence if he is discharged from the STU.

Dr. Christopher Lorah, a psychologist, testified on behalf of J.L.E. He indicated that prior to authoring his report, he reviewed numerous records. He conducted his clinical interview of J.L.E. for ninety minutes, and was familiar with J.L.E., having conducted a previous clinical interview in 2010. He diagnosed J.L.E. as suffering from sexual abuse of an adult, alcohol and cannabis abuse in sustained remission due to institutional setting, antisocial personality disorder, borderline intellectual functioning, fetal alcohol syndrome, vision problems, and interactions with the legal system - currently civilly committed. In his opinion, J.L.E. had received the maximum benefit from his commitment at the STU and did not pose a highly likely or likely threat for sexually violent behavior. He agreed that J.L.E. had therapeutic needs, but opined that those needs could be met through treatment on an outpatient basis.

To support his opinion, the doctor relied upon the low score J.L.E. received for recidivism, his consistent attendance at treatment programs although his contribution when present at these programs was not consistent and his successful completion of a number of modules, including Relapse Prevention II. Dr. Lorah also disagreed with the diagnosis of paraphilia NOS. He explained that such a diagnosis is utilized to identify problematic sexual behaviors that do not meet the criteria for any specific sexual diagnosis.

J.L.E. also testified, detailing the history of sexual abuse involving him, his sister, his aunt, and cousins when he was ten or eleven years old. He denied forcing his aunt to have sex with him, instead believing that the sex was consensual due to the incest within his own family when he was at a very young age.

After hearing the witnesses' testimony and arguments of counsel, Judge James Mulvihill credited the testimony of Drs. Stewart and Voskanian, finding their testimony and reports forthright, fair, knowledgeable and balanced. The judge did not credit the testimony of Dr. Lorah and specifically rejected the doctor's refusal to consider paraphilia NOS, as did the other doctors. He also found the credibility of the doctor's testimony was affected by the doctor's failure to "review original sources." Finally, he found J.L.E.'s testimony at odds with the factual record. He concluded that

I do find the State has . . . proven by clear and convincing evidence, number one, that [J.L.E.] has been convicted of a sexually violent offense. Number two, clear and convincing evidence that [J.L.E.] suffers from a mental abnormality and personality disorder to predispose him to sexual violence, does not spontaneously remit, and hasn't been mitigated by treatment, and not have sufficient treatment. There's clear and convincing evidence that at this time he's presently highly likely predisposed to committing acts of sexual violence if not confined to a secure facility for control, care, and treatment.

Because our standard of review is narrow, we defer to the judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). Here, the judge found, by clear and convincing evidence, that the State proved J.L.E. posed a high risk of re-offense if not confined to the STU because he has not made sufficient progress in his treatment and continues to suffer from mental abnormality, the effects of which apparently remain prevalent, according to the State's experts.

We find no abuse of discretion in the judge's conclusion, or any error in his affording the State's witnesses credibility in their examination of J.L.E. Accordingly, we affirm substantially for the reasons set forth by Judge Mulvihill in his oral decision of September 12, 2011.

1 Part of the record below required reconstruction and was remanded to the trial court to allow "reconstruction of the transcript of September 7, 2011." By agreement of all parties, "the reports of Drs. Lorah and Voskanian will stand as live, tested, and sworn testimony."