IN THE MATTER CIVIL COMMITMENT OF N.H.Y.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4286-04T24286-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF N.H.Y.

SVP-37-00,

________________________________

 

Argued October 3, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, SVP-37-00.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant, N.H.Y.

Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent, the State of New Jersey (Peter C. Harvey, Attorney General of New Jersey, attorney).

PER CURIAM

Appellant, N.H.Y., appeals from a judgment entered on March 21, 2005, following our remand, ordering his continued commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to

-27.38 and denying his application for gradual de-escalation in restraints. We affirm.

The following background is from our remand decision, In the Matter of the Civil Commitment of N.H.Y., Docket No. A-877-03T2 (App. Div. Dec. 30, 2004):

On July 3, 1985[,] N.H.Y. was convicted on one count of criminal sexual contact stemming from his February 13, 1985 attack on a female, age 15, with a knife and on one count of aggravated sexual assault stemming from his attack on a second female. He was sentenced to a twenty-year prison term.

On January 19, 2000 the State filed a petition seeking the involuntary civil commitment of N.H.Y. pursuant to the SVPA. The trial judge issued a temporary commitment order on January 20. At the final hearing, held on July 19, 2000[,] the trial judge found that the State's evidence established that N.H.Y. was a sexually violent predator and continued N.H.Y.'s commitment. Review hearings were conducted on June 28, 2001 and February 27, 2002. On each occasion, Judge Perretti ordered N.H.Y.'s continued commitment.

At a review hearing conducted on September 6, 2002 Judge Perretti was troubled, based upon the evidence placed on the record at the hearing, and could not at the time find by clear and convincing evidence that N.H.Y. remained highly likely to engage in future acts of sexual violence if his confinement did not continue. The judge ordered N.H.Y.'s continued confinement and participation in sex offender and substance abuse treatment pending the STU's development of a Phase Five transitional program for N.H.Y. and its presentation of this program to the court at a hearing. On October 16, 2002 Judge Perretti, pursuant to the transitional program agreed to by the parties, ordered the STU and Department of Corrections to enter N.H.Y. into an outpatient treatment group one day per week at the Adult Diagnostic and Treatment Center. Judge Perretti further ordered N.H.Y.'s continued commitment at the STU and scheduled a review hearing . . . at which time the STU was to provide the judge with a report on N.H.Y.'s treatment progress and a recommendation regarding further implementation of the transitional program.

Later developments set the stage for this appeal. At the next review hearing on August 20 and September 4, 2003, the State's experts agreed that N.H.Y. continued to be a sexually violent predator requiring continued commitment, but disagreed over the amount of progress N.H.Y. had made in treatment and whether a transitional program which gradually removed the restrictions placed upon N.H.Y., in preparation for N.H.Y.'s eventual release, was an appropriate course of action at that time. At the conclusion of the hearing, Judge Perretti found, on the basis of the "uncontested, uncontradicted, and unanimously agreed upon" evidence, that N.H.Y. was a sexually violent predator requiring continued commitment. She continued N.H.Y.'s commitment, setting a review date in August, 2004. The judge declined, however, to order a lessening of the restrictions upon N.H.Y., reasoning:

I will not get into the issue of his medical care, that is up to the experts here. They will have to resolve their differences of opinion as medical professionals do every day in every arena of the medical profession. It's not up to me.

On appeal, we affirmed Judge Perretti's commitment order consequent upon the September 4, 2003 hearing, but remanded for a prompt review hearing at which time the judge, consistent with our rulings in In re Commitment of K.D., 357 N.J. Super. 94 (App. Div. 2003), and In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003), should consider the goal of gradual de-escalation in restraints permitting a conditional release consistent with safety to the community. In the Matter of the Civil Commitment of N.H.Y., supra, at 9.

The remand hearings were conducted on February 18, March 15, and March 21, 2005. Prior thereto, in January 2004, and while his appeal of the September 4, 2003 order was pending, N.H.Y. committed several infractions at the STU, including soliciting a female corrections officer for sex and possessing $1,200 in cash for that purpose.

At the remand hearing, the State's expert, Dr. McAllister, a psychiatrist, concluded that N.H.Y. continued to pose a high risk for sexual re-offense. According to Dr. McAllister, N.H.Y. has yet to deal openly and honestly with his rape of the fifteen-year old girl, which he previously acknowledged, causing him to remain a great risk. N.H.Y. continues to suffer from paraphilia NOS with features of coercion, the deliberate humiliation of victims, exhibitionism, and froterism. Dr. McAllister also diagnosed a personality disorder, demonstrated by N.H.Y.'s self-centered view of the world, exploitative behavior and anti-social attitude. In his evaluation of N.H.Y.'s progress, Dr. McAllister noted that appellant has excluded substantial aspects of the offense cycle - his sex offending history and autobiography - from treatment. Moreover, the most recent STU incident in January, 2004, reveals an elevation of the risk since N.H.Y. acted impulsively, in accordance with his mental and personality conditions rather than "what sex offender therapy teaches him he must do." Accordingly, Dr. McAllister opined that N.H.Y. still needs treatment, is not ready for a transitional discharge plan, and is appropriately placed in Phase Three.

Dr. Iser, a psychologist, who also testified for the State, agreed that Phase Three is currently the proper STU placement for N.H.Y. He explained the conclusions of the report of the Treatment Progress Review Committee (TPRC) that N.H.Y. had not reached a level of treatment to significantly mitigate his risk; that, because of the most recent incident, he had regressed from a Phase Five to a Phase Three status in his treatment program; and that he still needed to complete the requirements for promotion to the next level, namely, a sex offender history, a written autobiography, a therapeutic deviant arousal polygraph, and a standardized assessment for deviant sexual interests.

Dr. Foley, a psychologist, testified on behalf of N.H.Y., opining that N.H.Y. had made progress in treatment sufficient to be granted a conditional discharge, with close monitoring in the community. According to Dr. Foley, N.H.Y. had fully participated in treatment to the extent available at the STU and that he now needs to use the skills that he has learned from treatment in a less restrictive environment.

At the conclusion of the plenary hearing, the court rejected the opinion of Dr. Foley, and credited those of the State's experts. Judge Perretti concluded that since N.H.Y. was unable to control himself sexually in a closely monitored STU environment, he would be an unacceptable risk in transitional release. She reasoned:

Close monitoring was not sufficient here, and it would certainly not be as close anywhere else. Dr. Foley's suggestion for a conditional discharge requires [N.H.Y.] to live in a supervised residence, such as a halfway house where his comings and goings would be carefully scrutinized.

He suggested a transitional release, maybe even from the STU, and it's his opinion that [N.H.Y.] needs an opportunity to test himself. It's his opinion that the risk is not so much of a threat as to be unacceptable.

However, [N.H.Y.] has clearly demonstrated what he will do in a structured environment. The situation that had been observed by Dr. Reeves, the long period of time when [N.H.Y.] had gone infraction free no longer exists.

In addition, Dr. Foley recommends individual therapy, as well as group therapy. The rationalization of this recommendation, with the recent extensive misbehavior with which Dr. Foley describes himself as troublesome, is not made clear.

He simply concludes that further treatment and confinement is not required, that [N.H.Y.] needs continued supervision and monitoring, and that he should be put out into the community with a series of conditions which make for a low threshold for return to STU.

I can only describe this as a recommendation that we just simply go ahead and take a chance, but that would be a chance in the face of this new conduct, in the face of the agreed diagnoses, in the face of the high risk actuarials, and in the face of Dr. Foley's own hypothesis that [N.H.Y.]'s irrational -- no . . . poorly- chosen actions arose out of his hopelessness and he became reckless.

There is no reason to conclude that [N.H.Y.] would not experience bouts of hopelessness out in the community. Dr. Foley particularly mentions that [N.H.Y.] would need very substantial support during his reentry into the community.

. . . .

Based on this evidence from the State, which I find to be clear and convincing, I am clearly convinced that [N.H.Y.] continues to be a sexually violent predator.

He suffers from abnormal mental conditions and personality disorders that adversely impact his emotional, cognitive, and volitional capacities in such a way as to predispose him to commit sexually violent acts.

As a result of this predisposition, he lacks control of his sex offending behavior, and this is clearly demonstrated in the January, 2004 offense committed in a highly-structured environment. There is almost no control here. I find that it is highly likely that [N.H.Y.] will reoffend if not continued here.

It is [N.H.Y.]'s choice to limit and direct his own therapy. His therapy to date has not sufficiently mitigated the risk. Even Dr. Foley says that it would only mitigate the score on the static to some degree.

He's established that sex offender specific treatment hasn't mitigated that risk to any degree.

Accordingly, based on evidence she found to be clear and convincing, Judge Perretti determined that N.H.Y. was not then entitled to a transitional program or placement in preparation for potential discharge.

On appeal, N.H.Y. challenges the court's findings as to his treatment, diagnosis, and propensity to commit future acts of sexual violence. We disagree with his contentions.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow", and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." 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)). See also V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 48 (1996). And where, as here, the request is for a gradual de-escalation of restraints, the State has the burden of proof, by clear and convincing evidence, that the committee is not entitled to such a transitional program or placement.

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of March 21, 2005.

Affirmed.

 

N.H.Y. did not present any witnesses.

By agreement of the parties, the appeal was argued without briefs. We set forth the agreement raised by appellant based upon the presentation at oral argument.

(continued)

(continued)

10

A-4286-04T2

RECORD IMPOUNDED

November 4, 2005