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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0626-05T2626-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.S.B.,

SVP-102-99.

 

Argued: December 7, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-102-99.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

C.S.B. appeals a June 24, 2005 order continuing his commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The order was based on factual findings and conclusions of law set forth in the June 23, 2005 oral decision delivered by Judge Philip M. Freedman after conducting an evidential hearing on May 4, 2005 and May 11, 2005. In accordance with an agreement of the parties, this appeal is to be determined on the record as supplemented by oral argument, but without briefs.

The factual and procedural history of this matter has been set forth in detail in our prior decision and need not be recounted here at length. In re Commitment of C.S.B., SVP 102-99, A-2978-03T2 (Dec. 13, 2004). In brief, C.S.B. was convicted of first-degree aggravated sexual assault on March 26, 1981 of a twenty-six year-old female. He was sentenced to a term of imprisonment of fifteen years with a parole disqualifier of seven and one-half years. On May 19, 1981, C.S.B. was sentenced on a separate first-degree aggravated sexual assault conviction, involving a sixteen year-old female, to a twenty-year term of imprisonment with a ten-year period of parole ineligibility, consecutive to the term imposed on the first offense. C.S.B. was scheduled to max out on that sentence in July 2000.

However, on July 14, 2000, the State filed a petition in accordance with the SVPA, seeking the commitment of C.S.B., contending he was a sexually violent predator in need of involuntary civil commitment. N.J.S.A. 30:4-27.28b. The predicate offense for the commitment application was the conviction on the May 19, 1981 sentence. A temporary commitment was ordered, and an initial commitment hearing was conducted on August 7, 2000. As a result of that hearing, the trial court determined that C.S.B. was a sexually violent predator in need of involuntary civil commitment, and ordered his commitment under the SVPA. See N.J.S.A. 30:4-27.29 to -27.32.

A first evidentiary review hearing was conducted on November 5, 2001, and the trial court continued C.S.B.'s commitment for a period of six months. See N.J.S.A. 30:4-27.35 (requiring that the first annual review hearing be conducted within twelve months of the date of the first hearing).

The second review hearing was initially conducted on August 15, 2002. However, the judge conducting that hearing vacated her decision and rescheduled the matter before Judge Freedman. The second evidentiary review hearing was then conducted on November 19, 2003, December 9, 2003, and December 11, 2003, resulting in entry of an order continuing C.S.B.'s involuntary commitment. On appeal we affirmed. See Ibid.

This is an appeal from an order issued by the Law Division on June 24, 2005, after the third evidentiary review hearing conducted on May 4, 2005, May 11, 2005, and June 23, 2005, also before Judge Freedman. The commitment order also directed the Special Treatment Unit (STU) to place C.S.B. into Phase III of its treatment protocol, and ordered that the STU arrange family counseling sessions for C.S.B. within sixty days.

Dr. Arnaldo Apolito, a psychiatrist, testified concerning the results of his evaluation of C.S.B., performed on May 3, 2005. Dr. Apolito stated that in addition to his session with C.S.B., he also reviewed numerous sources of information, as detailed in his May 3, 2005 written report entered in evidence, including evaluations by other psychologists and psychiatrists, the presentence report, as well as various treatment notes and reports. He explained that he reviewed these various sources of information to obtain a proper history, to determine C.S.B.'s actual behavior, to review the various diagnoses and treatment recommendations of other examiners, and to then compare that information with his examination of C.S.B. in reaching his own diagnostic assessment, conclusions and recommendations.

Dr. Apolito diagnosed C.S.B. as suffering from paraphilia N.O.S. on Axis I, and an antisocial personality disorder on Axis II. Dr. Apolito explained that paraphilia is "an abnormal expression of sexuality[,]" and

as far as experience tells us, never goes away. . . . [T]he intensity of the deviant urges can be . . . diminished through treatment. One can learn how to become alert to the initial arousal and to divert this arousal towards other thoughts. One can learn strategies to prevent a relapse by staying away . . . from dangerous, tempting situations, use other forms of help in order to control these impulses and avoid acting out on them, but as far as complete disappearance of the paraphilia, this is historically not feasible.

Dr. Apolito stated he diagnosed C.S.B. with paraphilia because he "has shown such an abnormal expression of sexuality, both in committing the . . . two acts of rape and attempted or actually perpetrated previous sexual offenses."

Dr. Apolito assessed C.S.B.'s level of intelligence to be between borderline and low normal. He noted that C.S.B. had refused to admit to commission of the predicate offense involving the first-degree aggravated sexual assault of the sixteen year-old female, although he had admitted and freely discussed the first-degree aggravated sexual assault of the twenty-six year-old female. Dr. Apolito expressed concern that C.S.B. had failed to admit to the predicate offense, particularly in light of the results of two polygraph tests that showed deception on all questions involving that offense, and his high scores on the actuarial testing in the Static 99 and MnSOST-R tests.

Dr. Apolito found it significant that C.S.B. had institutional infractions, stating it placed into question the legitimacy of the improvement shown in his treatment process, and was otherwise consistent with his diagnosis that C.S.B. was also suffering from an antisocial personality disorder. Dr. Apolito also explained that the diagnoses of paraphilia and antisocial personality disorder caused serious difficulty in controlling sexual offending behavior, stating:

Well, we know from experience, number one, that this is so, and it does make sense, because we have already listed the features of . . . a person who has antisocial personality disorder, which includes impulsivity, lack of . . . regard . . . for the well-being of others in trying to . . . fulfill one's own deviant purpose. The lack of remorse. The inability to understand the suffering that one subjects the other person to. So these are . . . unfortunately, very important negative features in one's personality which, understandably, would make it much easier for the individual to slide back into that kind of behavior.

Dr. Apolito concluded that the risk that C.S.B. would commit another sexually violent offense, if released, was high because of his continuous denial of the predicate offense, because of his diagnoses of paraphilia and antisocial personality disorder, and because of the his scores on the actuarial instruments which he stated were "quite high." Dr. Apolito also stated that there had not been "any significant treatment affect at this point so as to reduce his risk[.]"

Dr. Manuel Iser, a member of the Treatment Progress Review Committee (TPRC) that conducted the annual review of C.S.B.'s treatment program, testified and explained the five-phase treatment protocol utilized in the treatment of persons involuntarily committed under the SVPA. Dr. Iser explained that the TPRC did not approve the advance of C.S.B. from Phase II to Phase III during its annual review conducted on October 8, 2004, because of the negative results of the voluntary polygraph tests, C.S.B.'s continuing denial of the commission of the predicate offense, and his violation of institutional rules.

Dr. Carol Lester, a clinical psychologist who worked with C.S.B. in group therapy sessions between June 2004 and March 2005, testified that C.S.B. had made significant progress and she had recommended that he be advanced to Phase III of the treatment protocol, even though C.S.B. would not discuss the predicate offense. She also recommended that C.S.B.'s fiancé be included in his therapy sessions.

C.S.B. produced the testimony of Dr. Paul Fulford, a psychologist, who performed a psychological sex offender evaluation of C.S.B. on April 8, 2005. Dr. Fulford rejected the diagnosis of C.S.B. as paraphilia, concluding that C.S.B.'s intellectual limitations precluded such a diagnosis. He acknowledged, however, that the results of the Static-99 and MnSOST-R instruments of C.S.B. indicated he is a high risk for recidivism. However, Dr. Fulford viewed the fact that he had committed the sexually violent crimes when he was much younger lessened the risk for reoffending. Dr. Fulford characterized C.S.B. as within the low to low-medium range of risk for reoffending, and concluded that C.S.B. would "do what he's told[,]" and would comply with and participate in treatment if released from the STU if under court order to do so.

Dr. Fulford also rejected the diagnosis of antisocial personality disorder, again, because of his limited intellectual abilities. Dr. Fulford classified C.S.B. as "a follower[,] and stated "he's not antisocial, but more pre-social or under-socialized."

On June 23, 2005, Judge Freedman delivered an oral decision in which he stated, in pertinent part:

I find, by clear and convincing evidence, that the information that was utilized here is of the kind that is utilized by psychiatrists and psychologists in forming opinions with regard to future dangerousness. Judge Weissbard, in a recent opinion I think, tried to distinguish between treatment records, evaluations and forensic evaluations. These experts do not make any such distinction and in many cases, these documents can't be labeled one or the other, since they have dual purposes and are utilized for a hearing, but are also utilized with regard to treatment.

And, it's been my practice to review whatever records are provided and have been reviewed and utilized by experts who testify in this case. . . .

I want to clearly indicate that unless I particularly indicate I am relying on something because it comes in under an exception to the hearsay rule or is admissible for some other reason, I am referring to the document, the report, the evaluation or the like, to point out things in the record which, in my view, is important in the opinion of . . . that expert or experts I find credible and to explain, in part, why I find the expert or experts credible. I'm not relying on the hearsay to support my opinion."

* * * *

[T]hat we have a case [of] denial is not an uncommon thing here. It goes on for years. This case shows that it goes on for years, because he denied both. It's not like he admitted the 26 year-old case right from the get-go, and denied the second one. That might be more impressive to me, but here he's denied about them both for a long time and then, finally, admitted one and is engaging in treatment with regard to that one, but continues to deny the [second one]. . . .

[A]s . . . for the polygraphs . . . he did not pass the polygraph on two occasions. The court is not considering that in its opinion. I point it out because it's referred to in the testimony. And it's also important, because it points out the predicament that [C.S.B.] finds himself in at this time. He's way on down the road concerning the . . . 16 year-old offense as never having had anything whatsoever to do with it. He was convicted by a jury. As far as this court's concerned, he did it.

But the court is also aware that there is . . . nothing perfect in this world and the criminal justice system is, certainly, far from perfect. . . .

* * * *

For that reason, I don't really subscribe to Dr. Apolito's view that unless he admits he can't possibly get out of here. And I . . . believe from all of the testimony here . . . that [C.S.B.] is, in fact, doing [Phase] III work, but because of the fact that he failed to admit one of his two serious indictable offenses, he hasn't met . . . Phase III criteria.

* * * *

Now . . . . over a year has passed since my opinion back in January of 2004. He has continued on in his treatment and he's been doing quite well, but he maintains his innocence of the . . . 16 year-old charge. So I think [C.S.B.] needs to be allowed to go on in treatment and not be held back by that.

I am satisfied, from having reviewed the testimony of Dr. Fulford, that his opinion, really, has no . . . basis. He, in effect, is saying that because [C.S.B.] is retarded and, therefore, he doesn't have paraphilia and, therefore, he's not . . . dangerous, he's not highly [to reoffend]. Well, in fact, [C.S.B.] is not retarded. [C.S.B.] has not presented as being retarded as early as Dr. Foley's report, which is the first hearing in this matter back in 2000 and the verbal I.Q. test, which was given to him, clearly shows he's not retarded. He hasn't been presenting as retarded in his . . . group to the treater who testified, and the test proves it.

I'm satisfied that [C.S.B.] does, in fact, suffer from paraphilia. . . .

* * * *

Dr. Apolito diagnosed paraphilia NOS and ruled out psychiatric disorder NOS on Axis I, antisocial personality disorder on Axis II, developmental reading and writing disorder and ruled out borderline intelligence. I think borderline intelligence has been ruled out by the most recent test. Dr. Fulford did not retest him himself. He's aware of the test, the verbal I.Q. test, and I . . . don't credit Dr. Fulford at all and . . . I find his opinion is not entitled to any weight.

Dr. Apolito explained what paraphilia is. He explained that the earlier the sexual deviance appears, the more reserve the . . . prognosis is for being able to control it. The higher . . . the likelihood for recidivism, in other words. The . . . paraphilia is shown by the . . . two rapes that he committed and the attempted previous sex offenses, and the ones which he admitted him[self], the one's he's been convicted, and that's true whether it's one rape or two rapes.

And Dr. Apolito interviewed [C.S.B.], he was capable of understanding all the questions. He responded in a relevant and coherent way. . .

* * * *

[Dr. Apolito] testified, and I credit his testimony, that if [C.S.B.] were released today, he would still have a serious inability to control his sexually violent behavior, and that he would be a high risk.

I find that he does, in fact, suffer from mental abnormality and a personality disorder. That . . . the Axis I diagnosis, in combination with the anti[social] personality disorder, which clearly predisposes him to engage in acts of sexual violence and . . . they both, in combination . . . affect him cognitively, volitionally, and emotionally so as to predispose him.

And as I said before, [Dr. Apolito] testified that as far as he was concerned, if [C.S.B.] continues his denial, he really couldn't be released. I can't subscribe to that. I think he . . . has to given an opportunity. The testimony was that he could proceed . . . in treatment and . . . benefit from the treatment, even if he didn't admit it. And . . . that was Dr. Iser, . . . and Dr. Iser felt, after reviewing it, that [C.S.B.] was doing well in treatment and that . . . it was the effect of the denial of the 16 year-old case . . . which is keeping him in Phase II. He said it would be difficult and tough for him to advance through treatment, if he continues to deny that case, but that he could still advance.

* * * *

[A]s I said, I'm satisfied to accept Dr. Apolito's conclusion with regard to commitability. I find that, again, by clear and [convincing] evidence . . . [h]e suffers from an Axis I and Axis II diagnoses. They affect him in all three areas, in combination and individually. They predispose him to engage in acts of sexual violence. . . . and that he would be highly likely to reoffend and that he would have serious difficulty controlling his behavior if he was released.

The judge issued an order on June 24, 2005 continuing C.S.B.'s commitment in the STU, the secure facility designated for the custody and treatment of sexually violent predators, ordered that C.S.B. be placed into Phase III of the treatment program, that family sessions be arranged within sixty days, and that a review hearing be conducted on May 3, 2006.

On appeal, C.S.B. argues that the decision of the trial court is not adequately supported by clear and convincing evidence in the record. More specifically, C.S.B. argues that Dr. Apolito's conclusion that he poses a high risk for reoffending, upon which the judge relied, is not supported by the record. We disagree. After analyzing the record in its totality in the light of the arguments advanced by the parties, we conclude that this contention by C.S.B. is without sufficient merit to warrant extensive discussion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Freedman in his comprehensive oral decision delivered on June 23, 2005. We add the following.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. The fact that Judge Freedman rejected that portion of Dr. Apolito's opinion that stated C.S.B. could not be advanced in the treatment protocol until he had admitted the offense involving the sixteen year-old victim does not undercut the finding by the judge that C.S.B. suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that he his highly likely to reoffend unless confined.

 
The disagreement by the judge with that portion of Dr. Apolito's opinion goes to the issue of whether C.S.B. is able to advance to Phase III, the core of the treatment protocol. With the outright rejection of the opinions offered by Dr. Fulford, the diagnoses of paraphilia and an antisocial personality disorder remain. Judge Freedman accepted Dr. Apolito's opinion as to those diagnoses and his analysis as to their affect on the likelihood of C.S.B. to reoffend. The actuarial scores and the stage of C.S.B.'s treatment all support the judge's conclusion. By advancing C.S.B. to the core of the treatment program at Phase III, and by ordering family therapy, as recommended by Dr. Lester, Judge Freedman has provided C.S.B. an opportunity to advance through the treatment protocol to reach the point where his risk for reoffending may be diminished. However, this order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

Affirmed.

The STU is the secure custodial facility designated for the treatment of persons in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34a.

The Static-99 is a brief actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males who have been convicted on at least one sexual offense against a child or non-consenting adult; the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) is an actuarially derived and rigorously validated risk assessment instrument developed to aid clinicians in assessing risk for future sexual dangerousness in convicted sex offenders. See In Commitment of J.P., 339 N.J. Super. 443, 451 (App. Div. 2001). See also In re Commitment of R.S., 339 N.J. Super. 507, 534 (App. Div. 2001) (holding that actuarial risk assessment instruments can be used in SVPA hearings as a factor in the overall prediction process), aff'd, 173 N.J. 134, 136 (2002).

(continued)

(continued)

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A-0626-05T2

RECORD IMPOUNDED

December 19, 2005