IN THE MATTER CIVIL COMMITMENT OF L.S.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2270-05T22270-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.S.K. SVP-389-04

 

Argued May 16, 2006 - Decided June 14, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-389-04.

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 (Zulima V. Farber, Attorney General, attorney; Ms. Albano, on the brief).

PER CURIAM

L.S.K. appeals from the order of December 2, 2005, continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The initial order of commitment under the Act in this matter was entered on May 9, 2005, and included a six-month review date. Judge Freedman's December 2, 2005 order continuing L.S.K.'s commitment following that review is the subject of this appeal.

L.S.K., now thirty-nine years old, first committed a sexual offense in 1988 when he raped a fifteen-year old girl. He was convicted of second-degree sexual assault as a result in 1989 and was sentenced to an indeterminate term not to exceed ten years, to be served concurrently with a previously-imposed sentence for larceny. In 1995, L.S.K. was indicted in Passaic County for three counts each of first-degree aggravated sexual assault, second-degree sexual assault, second-degree endangering the welfare of a child and third-degree endangering the welfare of a child. All of these charges related to a variety of acts committed against his nephews, R.K. and C.K., and his niece, also known as C.K. At the time of the events, these children were aged three-to-five, five-to-seven and ten-to-eleven, respectively. In 1996, L.S.K. entered a guilty plea to one count of first-degree aggravated sexual assault and two counts of second-degree sexual assault. He was sentenced to a twelve-year term to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel on the first-degree offense, a sentence to be served consecutively to a sentence he was then serving for a 1994 burglary and theft. The sentences for the other sexual offenses were imposed to run concurrently with the sentence on the first-degree offense.

In 1998, L.S.K. also entered a guilty plea to endangering the welfare of S.K., another one of his nephews. That charge had originally been included in a 1995 Hudson County indictment that also charged L.S.K. with aggravated sexual assault, sexual assault, lewdness, and child abuse. All of these charges related to acts committed against S.K. when that child was between five and eight years old. In 1998, L.S.K. was sentenced to a five-year term to be served at ADTC concurrently with the Passaic County sentence. Following service of these sentences, L.S.K. was committed to the STU pursuant to the SVPA.

At his November 30, 2005 six-month review hearing, the State presented the testimony of Dr. Jason Cohen, a psychiatrist who had examined and evaluated L.S.K. Dr. Cohen diagnosed L.S.K. as suffering from pedophilia, non-exclusive type, polysubstance dependence and anti-social personality disorder with borderline intellectual functioning. He described the evidence contained in the record about L.S.K.'s offenses and his treatment that supported these diagnoses, together with the results of L.S.K.'s scores on the actuarial analyses. According to Dr. Cohen, L.S.K.'s actuarial scores placed him in the highest category for risk of reoffending and his success during treatment at ADTC had been insufficient to mitigate that risk. He characterized L.S.K.'s treatment at STU as follows:

I would say up and down and with . . . some ability to focus on relevant issues . . . like his anger, his history, his upbringing and how that . . . caused him to . . . feel a certain way about himself but at other times being very angry, being very defiant, being resistant even to the [therapeutic community] initially and not doing well at times. So, it was a very mixed presentation so far.

After testifying about L.S.K.'s diagnosis and treatment, Dr. Cohen opined that his risk of reoffense if released was "very high."

In addition, Dr. Paul Fulford, an expert psychologist, testified on L.S.K.'s behalf. He diagnosed L.S.K. as suffering from anti-social personality disorder, concluding that he had a conduct disorder based on his criminal history. Dr. Fulford also diagnosed L.S.K. as suffering from borderline mild mental retardation by history and substance abuse in institutional remission. He opined that L.S.K. should not be diagnosed as suffering from pedophilia or paraphilia because of his mental retardation and substance abuse. In addition, because L.S.K. told Dr. Fulford that he did not commit the offenses involving his nephews, the doctor concluded that these offenses should not be used for diagnostic purposes. Dr. Fulford opined that L.S.K. does not have "a diagnosable sexual disorder" and is not highly likely to reoffend if released.

Judge Freedman set forth his detailed findings and conclusions on the record on December 2, 2005. In doing so, he thoroughly explained his reasons for finding that the opinions expressed by Dr. Cohen were credible while those of Dr. Fulford were not. In relevant part, the judge described the differences in the experts' approaches and their reliance on the diagnostic criteria. In particular, he noted that the record demonstrated that, contrary to Dr. Fulford's belief and contrary to what L.S.K. had told Dr. Fulford, L.S.K. had repeatedly admitted having committed all of the sexual offenses with which he was charged, including all of the offenses against his several nephews and his niece when they were children. In addition, the judge referred to the DSM criteria for paraphilia and pedophilia as those standards relate to persons suffering from mental retardation, noting that the diagnosis of mental retardation may "rare[ly]" account for a lack of impulse control that expresses itself as "unusual sexual behavior." Noting that L.S.K.'s mental functioning is borderline and that the behaviors that he engaged in and that constituted his sexual offenses occurred on occasions too numerous to be considered "rare," the judge concluded that Dr. Fulford's diagnostic opinion was less credible than Dr. Cohen's.

The principles that guide us in our review of this matter are well-settled. An involuntary civil commitment can follow service of a criminal sentence or other disposition when the offender "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. The State must prove "a threat to the health and safety of others because of the likelihood of [the committee] engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). It must demonstrate, "by clear and convincing evidence," id. at 130, "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." Id. at 132. The trial court must address the committee's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Based on our review of this record, we conclude that the evidence abundantly supports Judge Freedman's decision and his order continuing L.S.K.'s commitment. The scope of our review in matters of this kind is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Apart from more generally applicable standards of review, we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." Ibid.; In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We can make no such determination on the record before us.

Affirmed.

 

(continued)

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A-2270-05T2

RECORD IMPOUNDED

June 14, 2006