IN THE MATTER OF THE CIVIL COMMITMENT OF L.K.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2687-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.K. SVP-389-04.

ArguedMarch 19, 2012 Decided April16, 2012

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-389-04.

Joan D. Van Pelt, Designated Counsel, argued the cause for appellant L.K. (Joseph E. Krakora, Public Defender, attorney).

Cindi Seider Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

L.K. appeals from a September 28, 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.

Forty-five year old L.K. has been convicted of five predicate sexual offenses. See N.J.S.A. 30:4-27.26(a). On March 7, 1988, a fifteen-year-old girl was walking home when L.K. grabbed her, dragged her into an abandoned building, and raped her. He was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(a), and sentenced on June 23, 1989 to an "indeterminate term, not to exceed ten years, to run concurrently with a sentence he was [currently[ serving . . . ."

In 1995, L.K. was indicted arising out of offenses he committed against two nephews and a niece. Ibid. Both boys said that L.K. "sucked their penises, put 'grease' on their bodies and attempted to put his penis into their 'butts.'" L.K.'s niece stated that L.K. "attempted to put his finger into her vagina, sucked her nipples and attempted anal penetration." L.K. admitted to several acts of sexual assault.

As a result, in 1996, defendant pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(a)(2). He was sentenced to twelve years of imprisonment on the first-degree offense, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, consecutive to a sentence he was then serving for a 1994 burglary conviction. He was "sentenced to two concurrent 10-year prison terms . . . for the two convictions of sexual assault, to run concurrently to the aggravated sexual assault conviction . . . ."

The State's filed a petition to declare L.K. a sexually violent predator, N.J.S.A. 30:4-27.28, on January 5, 2005. A temporary order of commitment was entered on January 13, 2005, (Da62), followed by an order of commitment on May 9, 2005. In re Civil Commitment of LSK, No. A-2270-05 (App. Div. Jun. 14 2006) (slip op. at 2). Further reviews hearings were conducted on November 30, 2005, November 8, 2006, November 7, 2007, and October 8, 2008. Commitment was continued as a result of each proceeding. L.K. appealed from the November 30, 2005, November 8, 2006, and November 7, 2007 orders, and we affirmed. Id.; In re Civil Commitment of L.S.K., No. A-1800-06 (App. Div. Apr. 10 2007); In re Civil Commitment of L.S.K., No. A-1494-07 (App. Div. May 22, 2008).

L.K. appeals his most recent commitment order, issued following a hearing conducted on September 28, 2011. At the hearing, the State presented the testimony of 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). L.K. also testified.

Dudek, testified regarding the TPRC's May 11, 2011 annual review report, which unanimously recommended that defendant remain in phase two of treatment. The TPRC opinion was based on a review of treatment notes and reports, conversations with the team, an oral presentation by L.K., as well as all available discovery material. The report noted that L.K. expressed hostility and anger in group sessions, denied assaults on his nephews, and failed to grasp the components of a healthy sexual relationship. Dudek stated that L.K. "reacts very strongly when feedback or questions that are presented to him may not necessarily reflect well on him."

Dudek acknowledged that L.K. had made "significant improvement from . . . the reports of his TPRC meeting in 2010," but pointed out that he continued to deny the assaults upon his nephews, and stopped attending assigned modules. L.K. had initially told the TPRC that he had not been assigned any modules, which Dudek opined was indicative of L.K.'s reluctance to provide "information that may reflect poorly on him." Dudek also noted that L.K.'s "long history of substance abuse . . . could indicate a higher rate of recidivism . . . ."

The TPRC report also contained information about L.K.'s test results. L.K. fell in the high risk category on the Static-99R test, which measures the risk of sexual reoffense. In addition, the committee diagnosed L.K. with pedophilia, non-exclusive, attracted to females and males; paraphilia NOS, non-consent, provisional; polysubstance dependence; and antisocial personality disorder.

The pedophilia diagnosis "indicates that [L.K.] has experienced recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a pre-pubescent child or children . . . for a period of at least six months." Paraphilia means L.K. is aroused by individuals who cannot consent. The antisocial personality disorder is based on a "long-term, maladaptive pattern of behavior involving a pervasive disregard for the wellbeing of others that begins in childhood or early adolescence and continues into adulthood . . . ."

The TPRC report contained many treatment recommendations, and concluded that L.K. has not yet "significantly lower[ed] his risk of recidivism to warrant recommendation of discharge.

Voskanian's September 16, 2011 report was written without the benefit of an interview with L.K., as he refused to participate. Voskanian relied upon the State's petition for civil commitment, clinical certificates, ADTC records and reports, various psychiatric and psychological evaluations, TPRC and other treatment reports, L.K.'s file, and his treatment progress notes. Voskanian noted that L.K. is indiscriminate, in that his victims involve both boys and girls, which elevates the risk of reoffense. In his view, L.K. was essentially the same person as he was when initially committed. In his view, L.K. persists at the initial stages of treatment, and continues to struggle with empathy. He diagnosed L.K. with "pedophilia, sexually attracted to prepubescent boys and girls, non-exclusive type; polysubstance dependence in controlled environment; and antisocial personality disorder." The substance abuse diagnosis entails "further impairment of impulse control." Voskanian stated that L.K.'s pedophilia would not go away. He testified that the diagnoses, when combined, "cause [L.K.] serious difficulty in controlling [sexual offending] behavior." Voskanian opined that L.K. was at a high risk of sexually reoffending unless confined. He summarized the factors leading to this conclusion:

Broad range of victim[s]. Very indiscriminate in victim choice. Offenses involved both boys and girls. They also involved [a] strange[r] victim, whom he raped without any appreciation of the victim itself - - herself circumstances [sic], and the fact that he's being observed by other people. History of behavioral problems starting at young age, as young as nine years old. History of criminal behaviors afterwards. History of alcohol - - alcohol abuse starting at the young age progressing to elicit substances. Persisting behavioral problems at the STU . . . and starting from ADTC, [no] substantial progress or positive change.

On cross-examination, Voskanian acknowledged that L.K. may have made some admissions regarding the molestation of his nephews in group work, but in his view, that was but an initial step heading towards progress.

L.K. took the stand on his own behalf. He said that he "took the floor" in his process group on two occasions, and discussed the molestation of his nephews. L.K. claimed he initially denied having molested them because he did not want others at the facility to know. He enumerated the self-help groups that he attends and the modules in which he has participated in the past. L.K. claimed to be voluntarily attending all possible self-help groups.

As to discharge, L.K. said he would make arrangements to receive after-care at ADTC and obtain employment. He acknowledged he would need continued sex offender and substance abuse treatment.

The court found by clear and convincing evidence that L.K. was a sexually violent predator, convicted of necessary predicate offenses, and suffering from mental abnormality or personality disorders which caused him to be

highly likely to engage in sexually violent acts by demonstrating that [he] has serious difficulty in controlling sexually harmful behavior and is highly likely that he will not control his sexual violent behavior and will reoffend. He has serious difficulty in controlling his behavior, that he is not ready for outpatient treatment. He should remain and needs to remain a resident here at the STU and if he did not do so, and is not subject to care and treatment at this facility, he is likely to engage in violent conduct.

The judge noted that L.K. has a history of repeated sexually violent behavior against both strangers and family members, a history of victimization on children running the gamut of ages from prepubescent to teenagers as well as a history of multiple substance dependence. He noted that L.K. committed sexual offenses while under legal supervision, has a "history of continued antisocial behavior[,]" and that his Static-99 score placed him at a high risk of sexually reoffending.

An involuntary civil commitment may follow completion 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(b). To establish ground for commitment,

the 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).]

This means the trial judge must address L.K.'s "present serious difficulty with control over dangerous sexual behavior[,]" id. at 132-33, and the State must establish by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 133-34. 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).

Annual reviews are mandated to conducted 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 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 modify the order "only where the record reveals a clear abuse of discretion." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)(citing State v. Fields, 77 N.J. 282, 311 (1978)). We search the expert testimony on the record only 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 September 28, 2011.

A