IN THE MATTER OF THE CIVIL COMMITMENT OF A.B.

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NOT FOR PUBLICATION WITHOUT THE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 A.B. SVP-603-11.

________________________________

November 21, 2014

Submitted October 27, 2014 Decided

Before Judges Sabatino and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-603-11.

Joseph E. Krakora, Public Defender, attorney for appellant A.B. (Maritza Rodr guez, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Vicki A. Mangiaracina, Deputy Attorney General, on the brief).

PER CURIAM

After being convicted of two separate sexually violent offenses, appellant A.B. was civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals, arguing that the State failed to produce clear and convincing evidence that he should be committed. In particular, he claims there was insufficient evidence to support a finding that he suffers from a personality disorder that predisposes him to commit acts of sexual violence. We affirm.

I.

In 1989, appellant, then seventeen-years old, sexually assaulted a sixty-four-year-old woman, S.B., in her home. Appellant associated with the woman's grandson and told S.B. that he had a "problem" with the grandson. Appellant grabbed S.B. by her nightgown around her neck area, ripped the telephone from the wall, and pulled her into her bedroom at knifepoint. Appellant then held the knife to her throat and told her to "shut up" or he would kill her. S.B.'s adult son called out to her, but appellant forced her to tell her son to "shut up and not move." Appellant then pushed S.B. onto her bed, said "open your legs," took out his penis, and penetrated her vagina. Realizing the son had left to get help, appellant fled.

Appellant later pled guilty to aggravated sexual assault with a weapon, N.J.S.A. 2C:14-2(a)(4), making a terroristic threat, N.J.S.A. 2C:12-3, unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). On October 22, 1990, he was sentenced to fifteen years in prison, with five years of parole ineligibility. He was released on June 13, 2000. Upon his release, appellant was ordered to comply with the requirements under Megan's Law of notification, registration, and community supervision for life (CSL). He failed to do so.

Less than five months after his release, appellant sexually assaulted J.M., a five-year-old female kindergarten student. Appellant was working as a volunteer at her school when he grabbed J.M. and took her to the boiler room. There, appellant removed her pants and underwear, and touched her buttocks with his penis while covering her mouth and telling her to "shut up." Appellant was charged, but released on bail pending trial.

According to police reports, seven weeks after he was released, appellant sexually assaulted a seventy-five-year-old woman, R.J., in her motel room. R.J. told police officers that appellant forcibly removed her clothes, vaginally penetrated her, and told her "not to make a sound or he would kill her." Appellant was charged with sexual assault. However, according to appellant, the charge was dismissed before trial because R.J. died from unrelated causes.

At trial for his assault on J.M., appellant was found guilty of second-degree kidnapping, N.J.S.A. 2C:13-1(b), third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. He also pled guilty to two counts of failure to register as a convicted sex offender, N.J.S.A. 2C:7-2(a) and (e), and two counts of failure to notify regarding change of address, N.J.S.A. 2C:7-2(a) and (d), in violation of Megan's Law. He was sentenced to a total of fifteen years in prison, with ten years of parole ineligibility.

While incarcerated, appellant was found to have committed various disciplinary infractions, including sexual acts with others when a female visitor was seen with her hands in his pants, unauthorized contact when he embraced the mother of another inmate, and writing a letter threatening the life of another inmate which led to his placement in close custody.

On January 26, 2011, the State petitioned to civilly commit appellant under the SVPA, with his crimes against J.M as the predicate offenses. An initial commitment hearing was held before Judge James F. Mulvihill on April 25, 2011. The State presented psychiatrist Pogos H. Voskanian and psychologist Doreen Stanzione as witnesses. Appellant did not testify and did not present witnesses.

Dr. Voskanian testified that he diagnosed appellant with "Axis II: Antisocial Personality Disorder Severe."1 The doctor opined that appellant is "at 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 stated he based this conclusion on the following. Appellant targets age-inappropriate victims and has a "tendency to gravitate towards very vulnerable people." He demonstrates "a trait of sexualizing his anger and using sex as a mode of punishment and display of brutality." His failure to register as a sex offender in violation of Megan's Law, and his refusal to take ownership of his crimes, support "the assessment of anti-social personality disorder, disregard for societal norms, [and a] disregard for law." His antisocial personality disorder "itself predisposes" appellant and made him "highly likely to sexually reoffend." Accordingly, Dr. Voskanian recommended appellant be civilly committed. 2

Dr. Stanzione likewise diagnosed appellant with "Axis II: Antisocial Personality Disorder (severe)." Dr. Stanzione testified as follows. Appellant demonstrated a "lack of remorse" and lack of "victim empathy." His antisocial personality disorder had manifested sexually and predisposed him to sexual violence. Appellant's choice of age-inappropriate victims and the "brutality" with which he committed his crimes was "striking." Appellant's "brazen" sexually violent behavior in situations where he was likely to be caught "demonstrates that [he] has very little control of his sexual impulses." Appellant's lack of control, which was further demonstrated by the fact that while he was incarcerated and being evaluated for civil commitment, he engaged in sexual misconduct and threatened another inmate

Dr. Stanzione testified that she had conducted a series of psychological tests which showed that appellant's psychopathy made him highly likely to reoffend. The doctor opined that even CLS would be inadequate given his level of risk and recommended appellant be civilly committed.

Finding both experts' uncontested testimony and opinions "very credible," the trial court found, by clear and convincing evidence, that appellant's antisocial personality disorder is a personality disorder which "predisposes him to sexual violence" and makes him "highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment."

II.

We must hew to our "extremely narrow" standard of review of a commitment hearing. In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (citation omitted). Appellate courts "give deference to the findings of our trial judges because they have 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)). Furthermore, "[t]he judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (citation omitted).

III.

Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a).

Three requirements must be satisfied to classify a person as a sexually violent predator: (1) "that the individual has been convicted of a sexually violent offense"; (2) "that he suffers from a mental abnormality or personality disorder"; and (3) "that as a result of his psychiatric abnormality or disorder, 'it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.'" R.F., supra, 217 N.J. at 152 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)); see also N.J.S.A. 30:4-27.26.

It is undisputed that appellant's convictions of aggravated sexual assault and aggravated criminal sexual contact satisfy the "sexually violent offense" requirement. See N.J.S.A. 30:4-27.26. Appellant contends that the State failed to show he suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence.

A.

The SVPA defines "[m]ental abnormality" as a "condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. Although the SVPA does not define "personality disorder," our Supreme Court has held it is sufficient if the offender has a mental condition that adversely affects his "ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127; see N.J.S.A. 30:4-27.26.

Appellant argues that antisocial personality disorder is insufficient under the SVPA to support civil commitment. In fact, antisocial personality disorder is a recognized personality disorder including under the DSM-IV-TR. It can be sufficient under the SVPA when the symptoms manifest in a sexually violent manner and it reduces the offender's ability to control his sexually violent conduct. W.Z., supra, 173 N.J. at 114; see e.g., In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 629 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Contrary to appellant's argument, particular factors, such as victim-grooming or rape fantasies, need not be present.

Both experts testified, and the trial court found, that appellant's antisocial personality disorder caused "serious difficulty in controlling sexually harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 130. The court properly relied on the experts' uncontested testimony.

Appellant also complains that Dr. Voskanian and Dr. Stanzione testified at the hearing about his alleged crime against R.J. He notes that he was never convicted of the assault. However, the experts could consider the assault, even though R.J. died before appellant could be tried. In re Commitment of J.M.B., 197 N.J. 563, 594 (2009) (holding that "the State's experts could consider the police reports as relevant background information when forming their expert opinions" and rejecting the argument that it was inadmissible hearsay). In any event, both doctors testified their opinions would be unchanged if that attack was not considered.

Appellant argues that committing him under the SVPA is inconsistent with the fact that on three separate occasions while incarcerated, he had been deemed ineligible for sentencing under the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, on three separate occasions. "[T]he fatal flaw in defendant's argument lies in its failure to appreciate that the Sex Offender Act and the SVPA are designed to serve different purposes . . . through different regulatory mechanisms." W.X.C., supra, 204 N.J. at 183. "As compared to the definition used in the SVPA for purposes of civil commitment and treatment, the defining statutory language in the [SOA] is far narrower[.]" Id. at 199.

Appellant emphasized that the psychologists who evaluated him for sentencing under the SOA opined that he lacked "sexual compulsivity." However, "the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" W.Z., supra, 173 N.J. at 129; In re Commitment of J.S.W., 371 N.J. Super. 217, 223 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005). As discussed above, appellant's antisocial personality disorder was sufficient to make him highly likely to commit sexually violent offenses. Indeed, one SOA evaluator determined that appellant's "criminal sexual behaviors are more readily attributable to [] antisocial tendencies than to sexual compulsivity," thus mirroring the diagnoses of Dr. Voskanian and Dr. Stanzione. In any event, the doctors testified that appellant's personality disorder places him at high risk to recidivate, and the trial court could credit their more-recent and uncontested opinions. "The focus of the SVPA is on the subject's current mental condition and the present danger to the public, not on punishment." In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002).

Moreover, "[i]n reviewing the [SOA] and the SVPA, it becomes obvious that the issues in sentencing a sex offender are significantly different from the issues in civilly committing a sexually violent predator." J.S.W., supra, 371 N.J. Super. at 224. Under the SOA, an offender must be "amenable" to treatment and must "accept his need for treatment." Id. at 223; see N.J.S.A. 2C:47-1. During his SOA evaluations, the evaluators noted that appellant provided them with contradictory accounts of his crimes and adamantly insisted he was innocent. At the commitment hearing, both experts also testified that appellant was unwilling to discuss his crimes and took no responsibility for his actions. As such, he was clearly not amenable to treatment.

We have explicitly rejected the argument that the State is collaterally estopped from committing an individual under the SVPA where that individual was previously found ineligible for sentencing under the SOA. J.S.W., supra, 371 N.J. Super. at 222-24. Thus, we reject appellant's argument that his ineligibility under the SOA demonstrates that State failed to prove by clear and convincing evidence that civil commitment is appropriate under the SVPA.

B.

There is also sufficient evidence to support the court's finding that the State met the third requirement, that "it is highly likely" appellant will not control his sexually violent behavior and will reoffend. W.Z., supra, 173 N.J. at 130. Such a finding requires "an assessment of the reasonably foreseeable future . . . based on the individual's danger to [] others because of his . . . present serious difficulty with control over dangerous sexual behavior." Id. at 132-33.

Appellant argues that the trial court erred by placing too much emphasis on his past conduct. However, as the United States Supreme Court recognized in considering Kansas's equivalent of the SVPA, "'previous instances of violent behavior are an important indicator of future violent tendencies.'" Kansas v. Hendricks, 521 U.S. 346, 357-58, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501, 512 (1997) (citation omitted). Our Supreme Court and we have held similarly in related contexts. In re Registrant, C.A., 146 N.J. 71, 90 (1996) (finding that "the best predictor of a registrant's future criminal sexual behavior is that registrant's prior criminal record"); State v. Moya, 329 N.J. Super. 499, 513 (App. Div. 2000) (finding that "past conduct is important evidence as to probable future conduct and should be given substantial weight in a dangerousness determination").

Despite appellant's argument that he does not suffer from a lack of control, the experts clearly testified otherwise and the trial court was entitled to accept their opinions that he is highly likely to commit sex offenses if released in the community. That finding is supported by appellant's commission of his crimes against J.M. merely five months after being released from prison after serving time for his sexual assault on S.B., his failure to adhere to Megan's Law requirements, and his continued misconduct, not to mention his alleged assault on R.J. while awaiting trial.

Accordingly, there is ample support in the record validating the trial court's determination that appellant is a sexually violent predator and is highly likely to reoffend unless he is civilly committed. Appellant has not proffered a valid basis for reversal.

Affirmed.

1At the time of the hearing, antisocial personality disorder was defined as "a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 571, 701 (4th ed. Text Revision 2000) (DSM-IV-TR). An updated "DSM-5" was issued in 2013.

2 In addition, Dr. Voskanian diagnosed appellant on Axis I with rule-out paraphilia NOS (not otherwise specified). Dr. Stanzione diagnosed appellant on Axis I with provisional paraphilia NOS. The doctors qualified these diagnoses because appellant largely declined to sufficiently discuss his sexual offenses with them. Because the trial court did not rely on these diagnoses, we do not discuss or rely on them.