IN THE MATTER OF THE CIVIL COMMITMENT OF A.Z.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00158-13T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.Z.G., SVP-114-00.

_________________________________

Argued May 13, 2014 Decided May 28, 2014

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-114-00.

Michael Denny, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Lucy E. Fritz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

In this sixth appeal1 of his ongoing civil commitment under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, A.Z.G. challenges the trial court's March 27, 2013 order continuing the commitment after a periodic review hearing. Applying the pertinent law to the facts of record, we affirm.

Appellant's offense history has been detailed in our prior opinions and need not be set forth at length here. The following summary will suffice. Between 1979 and 1981, appellant was charged at various times with marijuana possession, criminal mischief, damaging property, and a violation of probation. Thereafter, appellant was convicted of sexual offenses and other crimes, first in 1983 and again in 1995.

The 1983 conviction arose out of an incident in which appellant attacked a twenty-three-year-old woman while she was walking home early in the morning. Appellant sexually assaulted her in the street, threatened to kill her, and choked her while she struggled until he was eventually pulled off of her by the police. Appellant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and resisting arrest, N.J.S.A. 2C:29-2(a)(1). Appellant was sentenced to an aggregate prison term of eight years, during which he received four disciplinary sanctions.

The 1993 conviction stemmed from an episode in which he forcibly had vaginal intercourse with a thirty-three-year-old woman. The victim had been out drinking with friends and returned to her apartment, where appellant attacked her while she was unconscious. The victim's boyfriend, who also was in the apartment, observed appellant on top of the victim, with his hand over her mouth. Appellant threatened to kill the boyfriend if he called the police. A jury found appellant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). He was sentenced to a ten-year term, with a five-year period of parole ineligibility.

In 2000, as appellant's period of parole ineligibility was ending, the Attorney General successfully petitioned the trial court to have him civilly committed to the Special Treatment Unit ("STU") under the SVPA. Appellant has remained committed to the STU since that time, subject to periodic review hearings at which the trial court has consistently found that he remains highly likely to reoffend if released. We have affirmed such commitment orders each time appellant has previously appealed. See supra, Note 1.

Three expert witnesses testified at the March 27, 2013 hearing that is the subject of the current appeal. The State presented testimony from a psychiatrist, Dr. Pogos H. Voskanian, and a psychologist who is a member of the STU's Treatment Progress Review Committee ("TPRC"), Dr. Paul Dudek. Appellant presented expert testimony from a psychologist, Dr. Timothy Foley.

Dr. Voskanian has evaluated appellant on five prior occasions. His report for the present hearing found that appellant met "the qualifications for the definition of having a Mental Abnormality and Personality Disorder that place[d] him at high risk to engage in acts of sexual violence if he [was] not confined in a secure facility for control, care, and treatment."

In his most recent meeting with Dr. Voskanian, appellant denied having any mental illness, although he did admit to a history of alcohol and substance abuse. He told Dr. Voskanian that when the male eyewitness saw him raping the 1993 victim, he "could not interfere." Appellant acknowledged that he had committed crimes against two women and "had [a] sex problem," but did not believe he was still a sex offender. He admitted most, but not all, of the facts of his two sexual assaults. Dr. Voskanian observed that, although appellant claimed he felt sorry for what he had done, he "remained angry and with lack of remorse or empathy for his victims."

Dr. Voskanian opined that appellant "continue[d] to present with pathological and severe antisocial characterologic traits, which practically preclude[d] a meaningful progress in treatment. His progress in most problematic areas of his sexual pathology ha[d] been assessed as minimal." The doctor noted that appellant "displayed [a] considerable degree of anger," and failed to show any remorse or empathy. Appellant was vague, sarcastic, and defensive during his interview, and his need to humiliate his victims and also the boyfriend of a victim showed "a much deeper level of pathology and a higher risk of sexually violent recidivism."

According to Dr. Voskanian, appellant's chance of recidivism was heightened by his risk of drug and alcohol relapse based on his significant history of substance dependence. The psychiatrist noted that appellant had antisocial and narcissistic traits, which give him a sense of entitlement and a "nearly psychotic belief that the victim of his rape liked it." Moreover, Dr. Voskanian found that appellant failed to grasp the "large picture" of his offenses, and continued to blame his acts on his intoxication. Appellant's description of the sexual acts demonstrated that he was primarily motivated by a desire to rape. The doctor also noted that appellant had only just begun to discuss his personal history of childhood trauma.

Since the time of his last assessment of appellant, Dr. Voskanian found that appellant did "not appear to have made an appreciable progress in treatment . . . [and] continue[d] to present with multiple risk factors, which place[d] him at high risk for sexually violent recidivism." The psychiatrist diagnosed appellant with Paraphilia NOS (Not Otherwise Specified), polysubstance dependence in a controlled environment, and personality disorder NOS with antisocial and narcissistic traits.

Dr. Voskanian testified that appellant has a complex pathology related to his urge to sexually humiliate, sexualizing his aggression, and sadistic qualities. The psychiatrist further opined that appellant's paraphilia, his perceptions of social injustice, and his perceptions of vengeance all "funnel[ed] through sexual aggression."

Dr. Voskanian noted that appellant was not doing well in his treatment and that his status did not reflect the progress expected of an individual who had been committed for over ten years. According to Dr. Voskanian, although appellant has shown recent signs of motivation and progress, he still needed to address core issues.

Dr. Voskanian concluded that appellant remained at a high risk of recidivism because of his "[p]ersisting entitlement issues, persisting anger issues, unaddressed sexual pathology, poor progress in treatment, significant paraphilic disorder, history of reoffending after one conviction," and unaddressed core pathology, compounded by his risk of substance abuse relapse.

Dr. Dudek's testimony was generally consistent with that of Dr. Voskanian. Appellant admitted to Dr. Dudek that he had raped his two victims, attributing his wrongful behavior to his drug and alcohol abuse. Appellant claimed that he and his first victim were consensually kissing, stating that he only raped her when she refused to have sex with him. As for his second victim, appellant perceived that he had permission to have sex with her despite her boyfriend sleeping next to her. He claimed to Dr. Dudek that neither victim resisted him, but later admitted that his first victim fought back at the end.

Dr. Dudek noted that appellant scored on the low end of the high range for psychopathy on the Psychopathy Checklist-Revised, Second Edition. On the Static-99R test, appellant scored in the high-moderate risk category for being charged with or convicted of another sexual offense.

Dr. Dudek diagnosed appellant with paraphilia NOS, nonconsent, polysubstance dependence in a controlled environment, and personality disorder NOS, with antisocial and narcissistic traits. Dr. Dudek defined paraphilia as a chronic condition "characterized by intense, sexually arousing fantasies, sexual urges, and/or behaviors involving sexual arousal to adult women, who by virtue of force, are unable to consent." The expert defined polysubstance dependence as the repeated use of at least three groups of substance for at least twelve months. Dr. Dudek further described appellant's personality disorder as "a pervasive, persistent, maladaptive pattern of behaviors and inner experience."

Dr. Dudek noted that appellant had "been resistant to treatment . . . and ha[d] refused to remain in process group for the entire duration of the session with an evident history of difficulty completing sex offender specific modules." Moreover, appellant had "not consistently demonstrated a meaningful interest in engaging in the therapeutic process."

Dr. Dudek did acknowledge that, beginning in 2011, appellant began engaging in treatment more constructively and had made tentative progress. Despite that tentative progress, appellant was placed on MAP (Modified Activities Program) status within the STU for inappropriately brushing against a female worker and had maintained his stance of being a "victim" of the system. Additionally, appellant demonstrated very little understanding of his "arousal patterns." Dr. Dudek concluded that, based on appellant's stagnated treatment trajectory and his need to continue to address his issues, he should remain in Phase Three of his treatment.

Dr. Foley, appellant's testifying expert, afforded a competing assessment. He described appellant as cooperative and friendly, with some expressed frustration at the length of his commitment.

Dr. Foley observed that sexual offense recidivism declines with age, with a sharp decline after forty-five. He opined that appellant, who was age fifty-two at the time of his interview, was "an aging rapist who has been confined for the majority of his high-risk years." Dr. Foley perceived that appellant sufficiently took responsibility for his past crimes, and there was "no indications of a paraphilic disorder." The expert did characterize appellant's past conduct, however, as "impulsive, exploitive, and hedonistically driven while intoxicated."

Dr. Foley found insufficient evidence for a diagnosis of antisocial personality disorder, finding a diagnosis of NOS personality disorder, intertwined with substance abuse, more likely. He agreed with the State's experts' diagnosis of polysubstance dependence.

Dr. Foley favorably concluded that appellant had "established sufficient volitional controls," and, if released, appellant was "less than 'high likely' to commit sexually violent offenses" if he remained sober and complied with mandated community supervision, to which he was amenable. The expert recommended conditional discharge and a referral for in-patient drug and alcohol treatment. Dr. Foley further testified that appellant "ha[d] gotten as much as he [was] going to get" from his commitment, and that the risk of reoffending would not be significantly reduced by continued commitment.

Dr. Foley stated that appellant would not pose a threat if he remained abstinent from drugs and alcohol. Even so, Dr. Foley expressed some concerns in this regard because appellant had relapsed very quickly after his release from his first incarceration. Thus, Dr. Foley recommended "very close supervision" with "a very intensive drug and alcohol program after his release."

The judge who presided over the review hearing, Judge James F. Mulvihill, agreed with the State's experts. The judge began his bench ruling with a review of the witnesses and exhibits relied upon in rendering his decision, as well as the underlying facts of the crimes for which appellant was convicted. The judge then reviewed, in detail, the testimony and opinions of all three experts.

The judge particularly found Dr. Voskanian to be "credible," and based on his "interest and demeanor . . . very knowledgeable." As to Dr. Dudek, the judge similarly found his testimony to be "very credible," and that he was "[v]ery knowledgeable about the case." By comparison, the judge stated that although he found Dr. Foley generally to be credible, he "disagree[d] with [Dr. Foley's] diagnosis and his opinion that [appellant was] not highly likely [to reoffend]."

Although appellant was progressing and was on the "lower end" of the highly-likely-to-reoffend spectrum, Judge Mulvihill concluded that the State had presented clear and convincing evidence that demonstrated that appellant (1) was convicted of two sexually violent offenses; and (2) suffered from paraphilia NOS, a personality disorder, and polysubstance dependence, making him "highly likely" to commit further acts of sexual violence if not confined.

On appeal,2 appellant essentially contends that he no longer poses a high risk to reoffend by virtue of his age and his progress in treatment. He urges that we adopt the assessment of Dr. Foley, reject the contrary opinions of the State's experts, and reverse the trial court's order of continued commitment. We decline to do so.

As we have recognized in appellant's prior appeals, an involuntary civil commitment under the SVPA can follow an offender's service of sentence, or other criminal disposition, when he or she "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. As defined by the statute, a mental abnormality is "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. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The statute does not require a "complete loss of control." Id. at 128. A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid. See also In re Civil Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At the commitment hearing, the State must prove:

a threat to the health and safety of others because of the likelihood of [an SVPA offender] 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.

[W.Z., supra, 173 N.J. at 32.]

The court must address an individual's "serious difficulty in controlling sexually harmful behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 132-33; see also R.F., supra, 217 N.J. at 173. This standard continues to apply at annual review hearings. See N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a).

As the Supreme Court recently emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). On appeal, we give deference to the judicial findings from the commitment hearings, not only in recognition of the SVPA judge's expertise, but also because the judge has "the 'opportunity to hear and see the witnesses'" and also to have "the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146 161 (1964)).

The Supreme Court has accordingly directed that an appellate court should not modify the SVPA trial judge's determination either to commit or release an individual "unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Applying these deferential principles, we affirm the order directing appellant's continued commitment, substantially for the cogent reasons set forth by Judge Mulvihill in his oral decision of March 27, 2013, issued at the conclusion of the hearing. There is substantial credible evidence in the record, including the expert testimony of Dr. Voskanian and of Dr. Dudek, to support Judge Mulvihill's conclusion that the statutory criteria for appellant's commitment continue to be met.

The State's experts clearly explained that appellant still suffers from mental abnormalities, including paraphilia and antisocial personality disorder, that pose a high risk of future sexual violence if appellant were to be released. Although appellant's expert, Dr. Lorah, disagreed with the State's two experts as to the severity of appellant's condition and his risk of re-offense, the judge was free to reject that competing opinion and instead adopt the more guarded assessments of the State's two experts. R.F., supra, 217 N.J. at 174 (noting that SVPA judges are not required to accept all or part of a particular expert's opinions).

We are aware that appellant has made some progress in his treatment within the STU, and that his aging may reduce his likelihood of re-offense. Nevertheless, the State's experts cautioned that appellant continues to exhibit many negative characteristics that amply support the trial judge's conclusion that appellant presently remains "highly likely" to reoffend.

Affirmed.

1 See In re Civil Commitment of A.G., No. A-4356-05 (App. Div. Nov. 21, 2006); In re Civil Commitment of A.Z.G., No. A-3231-04 (App. Div. Oct. 17, 2005); In re Civil Commitment of A.Z.G., Nos. A-1587-02, A-3386-02, A-3506-03 (App. Div. June 21, 2004). The 2004 opinion consolidated appeals of three separate commitment orders. We are unsure why the 2006 opinion omitted appellant's middle initial, but it is undisputed that the appeal concerned the same individual.

2 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.