IN THE MATTER OF THE CIVIL COMMITMENT OF J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4766-14T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.R., SVP-647-12

___________________________________

November 30, 2015

Argued November 16, 2015 - Decided

Before Judges Sabatino and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-647-12.

Molly C. McNulty, Assistant Deputy Public Defender, argued the cause for appellant J.R. (Joseph E. Krakora, Public Defender, attorney).

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

PER CURIAM

Appellant, 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 May 28, 2015 judgment continuing his civil commitment after a review hearing. Relying 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.

I

The relevant evidence adduced at the review hearing was as follows. Appellant's predicate sexual offenses occurred between 1994 and 1995 as to one victim, and between 2001 and 2002 as to five additional victims.

According to the report of psychiatrist John Zincone, M.D., one of the experts who testified at the review hearing, appellant admitted he had approximately thirty-five sexual encounters with his first victim, M.F., a fourteen-year-old girl. At the time, appellant was thirty-one years old. These encounters included "oral and vaginal" sex. On June 17, 1996, appellant pled guilty to endangering the welfare of M.F., N.J.S.A. 2C:24-4(a), and was sentenced to three years of probation.

While incarcerated in 2001 at the Morris County Correctional Facility,1 appellant told another inmate that he had "done something" to a friend's children for which he deserved incarceration. The inmate informed officials of what appellant said, who in turn alerted the Morris County Prosecutor's Office. The children were identified and interviewed, and reported the following.

K.P., an eight-year-old girl, reported appellant rubbed her buttocks with his hand over her clothing on one occasion between February 2002 and March 2002, and told her not to tell anyone.

S.G., a six-year-old girl, claimed that between November 2001 and March 2002, appellant penetrated her rectally with his penis, digitally penetrated her vagina, and performed cunnilingus on her. The victim also reported appellant held her down and covered her mouth so she could not scream, and threatened to hurt her again if she told anyone.

K.D., a nine-year-old girl, reported appellant touched her breasts and groin area over her clothing on a daily basis between November 2001 and March 2002.

A.H., a five-year-old girl, claimed appellant touched her belly and her "privates," and kissed her thigh, between November 2001 and March 2002.

S.W., a ten-year-old girl, initially denied appellant had touched her, but later reported he had touched her breasts and vagina over clothing and told her not to tell anyone.

According to Dr. Zincone's report, in 2012 appellant admitted to another doctor that he had committed the offenses the above five victims described, but denied he had digitally penetrated any victim's vagina or penetrated any victim rectally. He also denied using force and having repeated sexual contact with any of these five victims.

On November 18, 2002, appellant pled guilty to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:2-(a)(1), and three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b)(2). He was sentenced to a twelve-year term, with a ten-year period of parole ineligibility. Appellant was subsequently sentenced to the Adult Diagnostic and Treatment Center ("ADTC") where he received sex offender treatment for approximately seven years.

When appellant's prison term was due to expire on June 7, 2012, the State filed a petition on May 22, 2012, seeking appellant's civil commitment under the SVPA. Following a review hearing, the trial court found the evidence clear and convincing that appellant was a sexually violent predator and, on June 25, 2012, ordered his continued civil commitment. Following a hearing to review appellant's commitment status in both 2013 and 2014, the trial court again found clear and convincing evidence appellant was still a sexually violent predator and ordered his continued civil commitment.

Dr. Zincone evaluated appellant in 2015. At the annual review hearing, held in May 2015, the doctor testified that appellant's criminal history indicated evidence of a paraphilic condition, as evidenced by his offending against both prepubescent and postpubescent females. Although when Dr. Zincone evaluated appellant he claimed he was no longer aroused by either prepubescent or postpubescent girls, the doctor was skeptical, noting being aroused by young children typically does not spontaneously disappear.

Moreover, by failing to admit he was still aroused by young girls, appellant was not engaging in meaningful treatment. Only by acknowledging his sexual feelings toward children will appellant be able to explore and learn to control his feelings in therapy. While over the years he has been active in treatment, he has resisted talking about his feelings of arousal and his inability to discuss these matters has been impeding his progress. At the time of the doctor's evaluation in May 2015, the effect treatment has had upon appellant has been minimal.

Appellant also has a significant problem with heroin, to which he unfortunately had access despite being committed. At the time of Dr. Zincone's evaluation, appellant had last used heroin in February 2015, but had been using this drug for three to four months. The doctor explained that the use of illicit substances can increase one's risk of reoffending, as drugs disinhibit and impair one's judgment, tempting one to act upon feelings of deviant sexual arousal.

Dr. Zincone concluded appellant suffers from a mental abnormality or personality disorder that affects him either emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence. Specifically, he suffers from pedophilic disorder and other paraphilic disorders in a controlled environment; severe opiate and cannabis use disorder in a controlled environment; and moderate hallucinogen use disorder in a controlled environment.

In addition, appellant has antisocial personality disorder, a diagnosis that is based upon both the sexual and non-sexual offenses he has committed, as well as a history of aggressive and assaultive behavior over which he does not feel remorse. All of the disorders from which he suffers will cause appellant to have serious difficulty controlling his sexual impulses.

Dr. Zincone conceded appellant scored a "three" on the

"Static 99R," a risk prediction test. A score of three indicates a moderate risk of reoffending. Statistically, this score suggests he has a 9.5 to 15.8 percent risk of reoffending in the next five years and a 14.5 to 24.3 percent risk of reoffending in the next ten years. Nevertheless, given his history, the doctor concluded his risk for sexually reoffending in the foreseeable future, unless confined to a secure facility, is "highly likely."

Debra L. Roquet, Psy.D, also testified. She served as a member of the Treatment Progress Review Committee (TPRC), which has been overseeing appellant's treatment and progress. She indicated that appellant has progressed in treatment, but "still has a ways to go."

Appellant also told Dr. Roquet he is no longer aroused by minors but, like Dr. Zincone, she discounted his claim. The record reflects that in 2014 appellant was placed in Phase 3A at the STU, which is regarded as the core phase of active treatment within the facility. She opined appellant was at high risk for reoffending because of his "pedophilic sexual arousal," which motivates him to sexually offend against children. In addition, he identifies emotionally with children, harbors hostility toward women, has difficulty solving cognitive problems, and has an antisocial orientation. Further, his substance use places him at acute risk for re-offending when either using or withdrawing from the use of illicit drugs.

Crediting the testimony of the two experts, the trial court concluded there was clear and convincing evidence that it was "highly likely [appellant would] engage in acts of sexual violence," and is "clearly dangerous pursuant to the balancing test of W.Z. [In re Commitment of W.Z., 173 N.J. 109 (2002).]" Among other things, the trial court found as follows

[L]ooking at this record, his history, his as the doctors have testified and I credit, his arousal to children didn't just go away, it doesn't just go away, and he hasn't really dealt with it in treatment. He's engaging in treatment and he's moving along, but he's going to have to address that if he's to come up with a relapse prevention plan that's going to work for him.

II

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." W.Z., supra, 173 N.J. at 127. 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 an 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.]

To commit or continue to commit an individual to an 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.

Here, the trial court correctly applied these standards to the evidence adduced at the May 2015 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." Id. 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 a trial judge's findings from commitment hearings, not only in recognition of the 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 cannot modify the SVPA trial court'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 judgment directing appellant's continued commitment, substantially for the comprehensive reasons expressed by Judge Philip M. Freedman in his oral opinion. The judge's conclusions are properly grounded in both the evidentiary record and the applicable law.

We reject appellant's alternative request that we order, in lieu of his release, that he be promoted to Phase 3B of treatment within the STU. That step was not endorsed in this record by either of the testifying experts, both of whom the judge found credible. We leave it to the expertise of the institution and appellant's treatment team to consider whether appellant should advance to Phase 3B at some future time.

Affirmed.

1

The reason for this incarceration was not entirely clear, but appears to be for possession of illicit drugs.