IN THE MATTER OF THE CIVIL COMMITMENT OF T.T.

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NOT FOR PUBLICATION WITHOUT THE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 T.T., SVP 226-02.

_______________________________

February 9, 2015

Submitted January 7, 2015 Decided

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-226-02.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Francesco Ferrantelli, Jr., Deputy Attorney General, on the brief).

PER CURIAM

T.T. appeals from an order entered September 21, 2012, finding him to be a sexually violent predator in need of involuntary civil commitment at the State of New Jersey 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.

I

At the civil commitment hearing, held on August 24, 2012, and September 19, 2012, the following evidence was adduced.

Psychologist Nancy Paolillo was called as an expert by the State. Her review of appellant's file revealed that, in 1976, appellant approached a six-year old child in an apartment hallway, put his hand over her mouth, told her to be quiet, and carried her into an abandoned apartment. He removed her clothing and inserted two fingers and then his penis into her vagina. After assaulting the child, he returned her to her apartment. The child reported the incident and a medical examination revealed that her genitals were swollen and a discharge was coming out of her vagina. Appellant was

ultimately convicted of carnal abuse1 and sentenced to a five-year term of imprisonment.

In 1992, appellant and a woman he met the day before met at her apartment for a drink. At one point she asked him to leave. He stabbed her with a pair of scissors and hit her in the head with a bat, causing her to lose consciousness. Upon regaining consciousness, the victim discovered appellant was shaving her pubic hair. Appellant sexually assaulted her repeatedly, slapping her on the head as he did so. Appellant also forced the victim to perform oral sex upon him, stabbed her with a screwdriver and tried to smother her with a pillow.

The victim survived this horrific attack and contacted the police. Appellant was charged with various offenses and ultimately pled guilty to first degree aggravated sexual assault, second degree aggravated assault, and third degree terroristic threats; he was sentenced to an aggregate term of fifteen years.2

By the time of the hearing, appellant had been in the STU for over ten years. He had refused all treatment but for attending "the treatment orientation group." Dr. Paolillo did not interview appellant before writing her expert's report dated August 2, 2012, because she had been informed by staff that he was unwilling to meet with her. However, from reviewing his file, she was able to determine that his Static3 was a "six," which meant there is a high probability he will commit another sexually violent offense. She diagnosed him with having paraphilia NOS (not otherwise specified), provisional sexual sadism, provisional pedophilia, alcohol dependency, and a personality disorder NOS with antisocial features. She opined appellant was at high risk to sexually recidivate.

The State also called psychiatrist Dr. Pogos Voskanian, M.D., as an expert witness. He attempted to interview appellant within a month of the hearing but also was told appellant declined to meet with him. Dr. Voskanian interviewed appellant twice before, in 2008 and 2011, and both times appellant refused to answer most substantive questions. Moreover, appellant took the position he did not have any psychological problems, and claimed he did not have sex with the adult female he was convicted of sexually assaulting. As for the child, he alternated between claiming he had been too intoxicated during the incident to recall any details and asserting he had not sexually assaulted the child at all.

Appellant has consistently refused to engage in any treatment. Dr. Voskanian found appellant to be a violent sexual predator because of the incidents with the adult female and the child. Specifically, he found it significant appellant not only sexually assaulted the adult victim, but also engaged in the additional violent acts of stabbing and clubbing her. Further, Dr. Voskanian noted from the record that appellant mopped up the adult victim's blood that had spilled on the floor, revealing his awareness that what he had done was wrong. The fact he also sexually assaulted a six-year old girl displays a non-discriminate need to express himself through sexual violence.

Dr. Voskanian concluded appellant suffers from a mental abnormality or personality disorder that predisposes him to sexual violence; specifically, he is "aroused to non-consensual, forceful, violent sexual activity that is a rape." If he were to abuse alcohol, as he has in the past, his behavior would become "erratic, violent, deadly, murderous." None of his conditions can remit spontaneously. Therefore, unless he is re-committed, appellant is at high risk to re-offend.

The trial court found Dr. Paolillo and Dr. Voskanian credible, that appellant was convicted of a sexual violent crime, that there was clear and convincing evidence he suffers from a mental abnormality and personality disorder that will not spontaneously remit, and that it is highly likely these afflictions will cause him to engage in further acts of sexual violence if not confined to the STU.

II

As recently observed by our Supreme Court, the SVPA

permits the State to involuntarily commit

"a person who has been convicted . . . of a sexually violent offense" who "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. At the commitment hearing, the State must establish three elements: (1) that the individual has been convicted of a sexually violent offense, ibid.; (2) that he suffers from a mental abnormality or personality disorder, ibid.; 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," In re Commitment of W.Z., 173 N.J. 109, 130 (2002). Although the first two elements derive directly from the statute, to comport with substantive due process concerns, this Court interpreted the third statutory element as requiring the State to show that a person is "highly likely," not just "likely," to sexually reoffend. Ibid.

The State bears the burden of proving all three elements by clear and convincing evidence. N.J.S.A. 30:4-27.32(a).

[In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014).]

A "sexually violent offense" includes aggravated sexual assault. N.J.S.A. 30:4-27.26(a). "Mental abnormality" means "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." N.J.S.A. 30:4-27.26.

Review of a trial court's judgment in a civil commitment proceeding under the SVPA is "extremely narrow." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We defer to the trial court's determination and make modifications only if there is a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the [trial court's] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996). Thus, the trial court's findings should not be disturbed if they are supported by sufficient credible evidence in the record. In re Civil Commitment of R.F., supra, 217 N.J. at 175.

Appellant argues the State failed to prove by clear and convincing evidence that T.T. must remain committed. We disagree. First, appellant was convicted of first degree aggravated sexual assault, a sexually violent offense. Second, the trial court found there was credible, unrefuted testimony establishing that appellant suffers from a mental abnormality or personality disorder that predisposes him to sexual violence, and that it is highly likely he will engage in further acts of sexual violence if not confined to the STU. Specifically, appellant's particular pathology causes him to become aroused by engaging in non-consensual, violent sexual activity.

After carefully considering the record and the briefs, we conclude appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Given the limited scope of review, we affirm the trial court's order of continued civil commitment. The trial court's conclusions were fully supported by the record and consistent with the applicable law.

Affirmed.

1 None of the statutory citations to any of the criminal offenses with which appellant was charged or convicted were in the record. We note, however, that appellant committed the offense of "carnal abuse" before New Jersey adopted the Model Penal Code on September 1, 1979. See State v. Van Dyke, 361 N.J. Super. 403, 415 (App. Div.), certif. denied, 178 N.J. 35 (2003). Thus, in an effort to appreciate the significance of appellant's crime in a modern context, we note that the facts supporting

appellant's conviction would constitute the offense of first degree aggravated sexual assault under N.J.S.A. 2C:14-2(a)(1). This would have exposed appellant to a term of imprisonment of ten to twenty years, with a mandatory eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. Appellant would also be required to register as a convicted sex offender, N.J.S.A. 2C:7-2, and would be subject to community supervision for life, N.J.S.A. 2C:43-6.4.

2 Again, to place this event in a modern context, we note appellant committed this crime before the Legislature amended the No Early Release Act, N.J.S.A. 2C:43-7.2, on September 1, 2001, specifically identifying first degree aggravated sexual assault as an offense subject to the Act's mandatory parole restrictions.

3 "Static" is a reference to Static-99, "an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses

. . . . [The Supreme Court] has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary fact-finding under the SVPA.'" In re Civil Commitment of R.F., 217 N.J. 152, 164 n. 9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).