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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5630-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF C.F.,

SVP 521-09.

__________________________

February 22, 2013

Submitted November 8, 2012 - Decided

Before Judges Grall and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-521-09.

Joseph E. Krakora, Public Defender, attorney for appellant C.F. (Michele C. Buckley, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

C.F. appeals from the July 8, 2009 judgment involuntarily committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Under the SVPA, the State must prove by clear and convincing evidence that the person whose commitment it seeks, "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. The standard is as follows:

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 . . . [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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]
 

In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid.

In May 1991, C.F. sexually assaulted T.V., his twelve-year old student. He was arrested and charged with endangering the welfare of a child and official misconduct. He pled guilty to third-degree endangering the welfare of a child. While out on bail for this crime, in June 1992, C.F. accosted A.H. in their apartment building elevator, knocked her to the floor, pulled off her pants, performed cunnilingus on her, and threatened to kill her. He then dragged her to his apartment where he beat and threatened to kill her. When A.H. refused to perform fellatio on C.F., he punched and choked her until she fell limp to the floor. Believing A.H. had died, C.F. proceeded to rape her. C.F. was charged with two counts of sexual assault, attempted sexual assault, terroristic threats and criminal restraint. He pled guilty to second-degree sexual assault.

C.F. fled to Pennsylvania after the rape of A.H. Three months later, in September 1992, he was at a truck stop in Pennsylvania, where a women he sought to have sex with rejected him. He became enraged and decided to rape someone. He saw W.P. and entered her open motel room door with a knife. When W.P. resisted him, he became more enraged and beat, stabbed, raped, and threatened to kill her. C.F. later pled nolo contendere to rape.

Later that same day, C.F. climbed into the bedroom window of the apartment of J.M. When she returned home, C.F. grabbed her and held her around the waist and shoulders. C.F. fled when a neighbor heard J.M.'s screams, looked through her window, and saw her struggling with C.F. C.F. later pled nolo contendere to burglary.

C.F. was sentenced in Pennsylvania to a minimum term of one year but no more than five years for the burglary, and to a minimum term of five years but not more than ten years for the rape to run consecutive to the burglary sentence. C.F. was returned to New Jersey and sentenced to a term of five years for endangering the welfare of a child to run consecutive to the Pennsylvania sentences, and to a term of five years for the sexual assault to run concurrent to the endangering the welfare of a child sentence and consecutive to the Pennsylvania sentences.

In January 2006, while in a New Jersey prison, C.F. punched another inmate in the face. He was found guilty of assaulting an inmate, and sanctioned with 120 days loss of commutation time (LOCT) and 120 days of administrative segregation.

In June 2006, C.F. struck an inmate in the head with a closed fist, kicked him, "smashed" him in the face with a trash can, and then chased him. C.F. was found guilty of assaulting another inmate and sanctioned to 15 days detention, 300 days administrative segregation and 300 LOCT.

In July 2007, C.F. was transferred to the Adult Diagnostic Treatment Center (ADTC). In September 2007, he fought with and injured another inmate, and went to the inmate's dormitory to continue the fight. C.F. was found guilty of fighting with an inmate and being in an unauthorized area. He was sanctioned to a total of 30 days detention and 180 days administrative segregation.

In January 2009, the court temporarily committed C.F. to the STU pending a final hearing, which began on June 25, 2009. C.F. was removed from the hearing due to his angry outburst.

The State's expert psychiatrist, Roger Harris, M.D., testified that C.F. currently suffers from several mental abnormalities that predispose him to sexually reoffend. The doctor diagnosed C.F. with paraphilia not otherwise specified (NOS) non-consent based on C.F.'s sexual urges, sexual fantasies, or sexual arousal to non-consenting women. He noted that C.F. viewed his crimes as "expressions of his rage and not the arousal to dominate and hurt women[,]" and found C.F. had many of the characteristics for arousal to coercion and "some aspects to sadism." For example, C.F. was able to maintain an erection while using excessive force on his victims and his sexual offending occurred while he was consensually sexually active with his girlfriend and prostitutes. The doctor found C.F.'s rape of A.H. to be "terribly alarming" in that C.F. was able to maintain an erection and ejaculate even after he thought A.H. was dead. He emphasized that this behavior indicated there was "little or nothing that's going to interfere with [C.F.'s] sexually gratifying himself." He emphasized that paraphilia NOS does not spontaneously disappear and the paraphilic tendencies are enduring characteristics.

Dr. Harris diagnosed C.F. with alcohol dependence and cocaine abuse in remission within an institutional setting. He explained that C.F.'s alcohol and drug use lowered his threshold to act on his impulses, which made it difficult for C.F. to control his sexual impulses and led him to become aggressive or immediately act on his sexual impulses, which puts others at risk.

Dr. Harris diagnosed C.F. with a personality disorder NOS, antisocial traits. He explained that C.F. has poor impulse control, disregards the rights of others and societal norms, and has an antisocial attitude. He opined that an antisocial attitude and deviant sexual arousal are two of the strongest predictors for future sexual offending.

Dr. Harris opined that C.F.'s anger played a large role in his sexual offending and had great clinical significance in C.F.'s risk to sexually reoffend. He noted that C.F.'s prison disciplinary record and his removal from the hearing due to an angry outburst indicated that C.F. "does not have the behavioral controls that one would expect. And, . . . . those outbursts can lead to his sexual offending."

Dr. Harris testified that C.F. had scored a four on the STATIC-99, placing him at moderate to high risk to sexually reoffend. He found that this score underestimated C.F.'s actual risk. The doctor also noted that despite receiving sex offender treatment in Pennsylvania, C.F. had "not mitigated his risk sufficiently to be released into the community at this time." Ultimately, he concluded that C.F. "is a high risk to sexually offend and meets the criteria for commitment" under the SVPA, and that C.F. had to address his antisocial attitudes and behaviors in order to reduce his future risk to sexually reoffend.

The State's psychological expert, Shawn McCall, Psy.D., diagnosed C.F. with polysubstance dependence (in a controlled environment), paraphilia NOS (non-consent) provisional, and antisocial personality disorder. He noted that C.F. had attended a sex offender treatment program while in Pennsylvania and treatment reports indicated C.F. did well. Despite that treatment, C.F. engaged in several physical altercations while in a New Jersey prison, which indicated that C.F. "is either unable, incapable, or unwilling to use the coping mechanisms presented in that program." The doctor confirmed that C.F. currently suffers from a mental abnormality and personality disorder which predisposes him to sexually reoffend. He concluded that C.F. was "highly likely to engage in future acts of deviant sexual behavior as defined by the SVP[A] if released into the community at this time."

C.F.'s expert psychiatrist, Anasuya Salem, M.D., testified that she scored C.F. with a four on the STATIC-99 assessment, which placed him in the moderate to high risk category to sexually re-offend. However, she also scored him as an eighteen on the MnSOST-R actuarial instrument, placing him in the high risk category to sexually reoffend. The doctor explained that the MnSOST-R score more accurately showed C.F.'s risk to sexually reoffend because the STATIC-99 test did "not take into consideration . . . [C.F.'s] violence and aggression during his offenses." She diagnosed C.F. with polysubstance dependence in remission and antisocial personality traits, and concluded he suffered from a mental abnormality or personality disorder that made him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment.

C.F.'s second expert psychiatrist, Marina Moshkovich, M.D., testified that she scored C.F. with a four on the STATIC-99 assessment. The doctor also scored him with a fourteen on the MnSOST-R, placing him in the high risk category to sexually reoffend. She explained that the STATIC-99 score did not accurately reflect C.F.'s real risk to reoffend because it did not consider that his sex offenses "were extremely brutal [and] very violent." She diagnosed C.F. with paraphilia NOA (aroused to rape), pedophilia NOS (girls; non-exclusive), polysubstance dependence (in institutional remission), and antisocial personality disorder with narcissistic features. She concluded that C.F. suffered from a mental abnormality as defined by the SVPA or personality disorder that made him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment.

C.F.'s psychological expert, Emili Rambus, Psy.D., treated C.F. at the ADTC. She noted that during a group therapy session, C.F. became angry when other group members questioned him. As his anger escalated, his rape dynamics became evident when he directed his anger toward her and attempted to degrade her. She noted the similarity of this behavior to C.F.'s behavior during the hearing, which resulted in his removal. She concluded that despite receiving sex offender specific treatment in Pennsylvania, "[C.F.'s] limited insight into his deviant sexual arousal and lack of awareness regarding his feelings, distorted thoughts, and behaviors, in addition to his poor self-control in terms of reacting to his female therapist raise concerns about the integration of his knowledge of treatment and of himself."

The trial judge determined there was clear and convincing evidence that C.F. currently suffered from mental abnormalities or personality disorders and was highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment. The judge found that C.F.'s mental abnormalities do not spontaneously remit, C.F. continues to be a very violent person, and the health and safety of women were at risk because of the very strong likelihood that C.F. will engage in sexually violent acts. This appeal followed.

On appeal, defendant's assigned counsel raises the following contentions:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [DEFENDANT] WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

POINT II

[DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, WHERE HIS COUNSEL DID NOT ADEQUATELY INVESTIGATE THE CASE.

In a pro se supplemental brief, C.F. raises the following contentions:

POINT I

THE OVERALL THRUST AND MANY OF THE PARTICULARS OF THE STATE'S RESPONSE ARE AN APPEAL TO PREJUDICE RATHER THAN A PROBATIVE APPELLATE BRIEF.

POINT II

THE STATE VIA ITS BRIEF REPEATEDLY ATTEMPTS TO BOTH RETRY THE ISSUES OF THE HEARING AND TO CREATE NEW OFFENSES AND INCIDENTS NOT REFLECTED IN THE RECORD.

POINT III

CASE LAW RELIED UPON BY THE STATE AND THE RECORD OF THE COMMITMENT HEARING SUPPORT APPELLANT'S CONTENTION OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE HEARING COURT'S FAILURE TO PROTECT DEFENDANT'S RIGHT TO COUNSEL.

Our review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We afford "special deference" to a committing judge's decision. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We must defer to the committing judge's decision unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). There is no such abuse of discretion here. We are satisfied that the evidence clearly and convincingly established that C.F. is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.

We have considered C.F.'s ineffective assistance of counsel contention and the contentions in his pro se supplemental brief in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

We reject C.F.'s contention that his attorney rendered ineffective assistance by failing to present evidence about his sex offender treatment in Pennsylvania. The evidence presented at the hearing included information about the nature and extent of the sex offender treatment C.F. received in Pennsylvania. Three experts confirmed that C.F. did not benefit from that treatment.