IN THE MATTER OF THE CIVIL COMMITMENT OF S.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.S., SVP-527-09

_______________________________

November 24, 2014

Argued October 20, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-527-09.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant S.S. (Joseph E. Krakora, Public Defender, attorney).

Theodore Martens, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

S.S.,1 who is presently confined to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, appeals the trial court's January 14, 2014 order continuing his civil commitment after a review hearing. Relying largely on the State's unrebutted expert testimony, the trial court found that appellant continues to be a sexually violent predator in need of involuntary commitment. We affirm.

Appellant's predicate sexual offenses occurred in 1982 and 1983. They all involved minor African-American females.

The first incident occurred in December 1982, when appellant attacked an eight-year-old girl who was walking home from school. Appellant pulled her into his vehicle, forced her to take off her pants, struck her buttocks, and either urinated or ejaculated in her face.

The second incident occurred in January 1983. Appellant jumped out of the bushes and abducted both a twelve-year-old girl and an eight-year-old girl. Threatening them with a knife, appellant drove the girls to the rear of a church. He then ordered the girls to remove their clothing. He cut the older girl's hair, and punched her in the face. He then ordered the younger girl to perform cunnilingus upon the older girl. Appellant digitally penetrated the vaginas of both girls, and forced the older girl to perform fellatio upon him.

The third incident occurred in May 1983. On this occasion, appellant enticed an eleven-year-old girl and a seven-year-old girl to get into his car, promising to pay them for delivering flyers. He drove the two girls to a parking lot, where he locked the girls inside his car and put his hand over the older girl's mouth. Claiming that he had a knife, appellant directed the older girl to get into the back seat. He fondled her breasts, stroked her vaginal area and buttocks, and forced her to allow him to ejaculate into his mouth.

On August 24, 1983, appellant pled guilty to the predicate offenses of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2, and one count of first-degree kidnapping, N.J.S.A. 2C:13-1(b). He was sentenced to ten years in prison, with a five-year period of parole ineligibility, on Indictment No. 1241-3-83; ten years in prison, with a five-year period of parole ineligibility, consecutive to Indictment No. 1241-3-83, on Indictment No. A448-83; twenty years in prison, with a ten-year period of parole ineligibility, for kidnapping; and ten years in prison, with a five-year period of parole ineligibility, for Indictment No. 1242-3-83, consecutive to the kidnapping sentence.

On May 6, 2009, the State filed a petition seeking S.S.'s civil commitment pursuant to the SVPA. After reviewing the supporting clinical certificates and other evidence, the trial court found probable cause that appellant is a sexually violent predator. The court issued an order temporarily authorizing S.S.'s transfer to the STU. After conducting a plenary commitment hearing, the trial court ruled in June 2009 that the State had met its burden to establish that appellant is a sexually violent predator in need of civil commitment.

Appellant sought review of the trial court's June 2009 commitment order. We upheld the order in an unpublished opinion. See In the Matter of the Civil Commitment of S.S., No. A-5457-08, slip op. at 3-5 (App. Div. March 25, 2011).

On August 30, 2011, the trial court conducted a review hearing and found that appellant continued to be a sexually violent predator in need of involuntary civil commitment. Appellant filed an appeal of that August 2011 decision, but he later withdrew it.

A further review hearing was held on November 9, 2012, resulting in an order continuing appellant's commitment to the STU. Appellant did not appeal.

The present appeal2 stems from a review hearing conducted on January 8, 2014. The State presented testimony from two expert witnesses at the hearing: Pogos Voskanian, M.D., a psychiatrist, and Paul Dudek, Ph.D., a psychologist. Appellant did not contest the expert credentials of either doctor. Appellant did not testify or offer any evidence.

Dr. Voskanian stated that he had attempted to conduct an evaluation of appellant, but he refused the interview. Dr. Voskanian consequently based his report on a review of appellant's previous psychiatric evaluations, progress review reports, the discovery file, and STU treatment records generated over the course of the prior year. Dr. Voskanian's twenty-five-page written report, dated October 3, 2013, was admitted into evidence without objection at the hearing.

In his report, Dr. Voskanian concluded that appellant's "degree of progress in treatment in consideration of [the] severity of his sexual pathology, at the current time cannot be viewed as sufficient to mitigate his high risk of sexually violent recidivism." Specifically, Dr. Voskanian found that appellant met the diagnostic criteria for the following conditions: Pedophilia, aroused to underage girls, non-exclusive; Voyeurism; Telephone Scotologia; Paraphilia Not Otherwise Specified ("NOS") (aroused to rape); R/O Sexual Sadism; Personality Disorder NOS, with Antisocial Traits. Dr. Voskanian concluded that these conditions "qualify [appellant] as having mental abnormality and personality disorder that place him at a high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

Dr. Voskanian found it significant that appellant's victims were all African-American girls. As the psychiatrist explained, this racial commonality has

long-standing relevance because [appellant's] mother . . . would make racial comments. And there is a history of [appellant], as per [the] record, bringing home African-American girlfriend[s] in spite of his mother. Because . . . his mother told him that he cannot marry [a] black girl. [Appellant] also . . . had . . . rigid attitudes that African-American females are more permissive.

Then . . . he blamed his mother on . . . her attitude towards African-Americans and he acted out on African-American kids. There['s] a pathology involved with this . . . . It's not out of [the] blue that he molested . . . African-American girls. There was [a] great deal of resentment towards his mother's prejudicial attitudes and his own beliefs regarding African-Americans . . . [.]

Dr. Voskanian noted that appellant's sexual history was "more complex" than "just pedophilia," because it also involved voyeurism, in that he forced his victims to perform sexual acts on each other while he watched. Additionally, Dr. Voskanian underscored the "considerable degree of violence" and appellant's "enjoying the fear of the victim" which accompanied his offenses. The psychiatrist also found it significant that at least one of appellant's offenses was committed while he was out on bail, signifying his "disregard for the law" and "disregard for consequences."

With regard to appellant's history at the STU, Dr. Voskanian noted that he had advanced to Phase 3A of his treatment about a year earlier. Despite that progress, Dr. Voskanian described appellant as "struggling with expression of his emotions." As he elaborated

[Appellant] struggles with accepting blame for minimal and . . . severe events in his life. Minimally utilizes internal and external interventions. He becomes loud with other residents. Blames others for his actions. Little empathy to those who are attempting to help him. Remains self-centered with superficial knowledge of treatment. Takes little effort for learning. Attempts to manipulate others. He's not a member of [the] therapeutic community.

Additionally, Dr. Voskanian noted appellant's "significant history of substance dependence," as well as his "elementary" understanding of his sexual assault cycle and that S.S. "has no formal relapse prevention plan."

Dr. Voskanian indicated that he also should have added Polysubstance Dependence to the diagnosis in his report. In the expert's opinion, the addition of this diagnosis would make the other diagnoses "much worse," particularly in appellant's case, because appellant had committed two of his offenses while he was intoxicated.

Dr. Voskanian concluded that appellant "remains at high risk" of sexually reoffending if not recommitted to the STU because

[T]he treatment gain is minimal. [Appellant] is not described as internalizing his treatment or understanding his pathology at this point. He's in [the] relatively early stages of treatment. And one also should consider that [appellant] has multiple paraphilias which also increases the risk notably increases the risk for that.

Dr. Dudek's testimony echoed many of these concerns. As a member of the STU's Treatment Progress Review Committee ("TPRC"), Dr. Dudek took part in the TRPC's annual evaluation of appellant. As part of its evaluation, the TPRC panel conducted a clinical interview with appellant for approximately an hour.

Dr. Dudek testified that he found noteworthy the "significant escalation" and the violence associated with S.S.'s sexual offenses over time: "it begins with . . . obscene phone calls, working up to more violent and aggressive sexual offenses against stranger victims who are minors. And that within part of those offenses with the minors . . . there's a significant degree of violence involved."

Dr. Dudek also cited appellant's substance abuse history, dating back to when he was thirteen years old, involving his use of marijuana, alcohol, and hallucinogens, as well as a history of cocaine and heroin use that continued when appellant was in prison. According to Dr. Dudek, this substance abuse history is significant because S.S. has acknowledged being intoxicated at the time of several of his sexual offenses. Dr. Dudek found that appellant has not yet been adequately treated for these substance and alcohol problems.

Dr. Dudek spotlighted a recent fantasy reported by appellant, which the expert found indicative that appellant is still in only the "very early" stages of treatment. In particular, appellant disclosed that he had fantasized about raping a female corrections officer with whom he had had some difficulties. This fantasy, occurring after several years of appellant's treatment within the STU, indicated to Dr. Dudek that appellant is only beginning to understand the triggers that produce his sexual urges and emotional outbursts. According to Dr. Dudek, appellant has not yet learned how to control such urges

[Appellant] hasn't developed any sort of strategies or techniques in which to immediately intervene with them when they do . . . become triggered. And that he . . . views the humiliation especially as part of it likely being arousing which could be attributed to the sadistic elements of his . . . deviant arousal.

Dr. Dudek agreed with Dr. Voskanian's assessment that it was significant that appellant's victims were all African-American girls. In addition to suggesting "an ingrained and entrenched pattern of arousal . . . towards a particular group of . . . minors," this fact also suggested, according to Dr. Dudek, that

[T]here are some aspects . . . in terms of . . . [appellant's] own core beliefs which would rationalize his behavior . . . . Especially in terms of a sense that he's been above the law. That he could do what he wanted to do. That he can easily distance himself from the actual emotional reactions and the consequences of his behavior on other people. That especially if he views them as being disposable. That it almost wouldn't necessarily matter what he would do at that point.

Dr. Dudek acknowledged that appellant has been "somewhat active" in his process groups and has completed "a number" of written materials, such as the sexual history questionnaire. However, Dr. Dudek also cautioned that

But, generally what he tends to do is to place the blame for his problems externally out towards him and not necessarily being aware of . . . the kind of thoughts that are . . . elicited by his own responses. That is understanding is really quite elementary and intellectual in terms of the offense cycle, but has significant amount of trouble applying it to himself.

According to Dr. Dudek, appellant is not yet in a therapeutic community, and he is not being considered for possible entry in the "short immediate future." In order to gain entry into the therapeutic community, Dr. Dudek opined that appellant would need to show a "greater understanding of the offense-related dynamics as they apply to him to be able to regulate the emotions, develop strategies . . . to intervene with, for instance, emotions with sexual urges. That would be much more evident for him."

To reduce appellant's risk of recidivism below "highly likely," Dr. Dudek opined, would require him to develop strategies to manage his arousal triggers and sexual urges, as well as develop the ability to identify his emotions and understand the "pattern of thoughts and beliefs which have been permissive towards much of this. As well as protect him from what's his discord from stress around him."

After considering the testimony of the State's experts, both of whom he found credible, and the hearing exhibits, the trial judge, Hon. Philip Freedman, ruled that appellant's commitment to the STU should be continued. Judge Freedman found that the State had met its burden of proving by clear and convincing evidence that S.S. "suffer[s] from multiple mental abnormalities as well as a personality disorder. And individually any combination of these predispose him to engage in acts of sexual violence as his record clearly shows."

Judge Freedman determined that "if released [appellant] would, without question, have serious difficulty controlling his sexually violent behavior. And would be highly likely within the reasonably foreseeable future to be engaging in the substance abuse and the sexually violent offenses . . . . [t]hat he is, without question, a dangerous person in need of continued civil commitment."

Appellant contends that these findings are not sufficiently supported by the record and that the State has failed to meet its evidentiary burden under statute. We disagree.

Pursuant to the SVPA, an involuntary civil commitment can follow an offender's service of a custodial 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" consists of "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. The 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). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At the SVPA commitment hearing, the State has the burden of proving that the offender poses 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.

[W.Z., supra, 173 N.J. at 132.]

The court must address the offender's present "serious difficulty with control over dangerous sexual behavior." Id. at 132-33. To commit or continue to commit the individual to the STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; see also R.F., supra, 217 N.J. at 173.

The trial court correctly applied these standards to the evidence adduced at the January 2014 review hearing. The unrefuted testimony of both of the State's experts clearly demonstrates that appellant continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released.

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 must 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 to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

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 (internal citations omitted). "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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).

Applying these deferential principles here, we affirm the order directing appellant's continued commitment, substantially for the comprehensive reasons expressed by Judge Freedman in his oral opinion. The judge's conclusions are properly grounded in both the evidentiary record and the applicable law.

Affirmed.

1 S.S. formerly used a name with the initials "S.G."

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