IN THE MATTER CIVIL COMMITMENT OF S.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4817-02T24817-02T2

A-0649-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.R. SVP 243-02

 
________________________________________________________________

Submitted September 20, 2006 - Decided November 1, 2006

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-243-02.

Ronald K. Chen, Public Advocate, attorney for

appellant S.R. (Stephen M. Latimer,

Designated Counsel, of counsel, on the brief).

Stuart Rabner, Attorney General of New Jersey,

attorney for respondent, State of New Jersey

(Patrick DeAlmeida, Assistant Attorney General,

of counsel; Jay Tierney and Beth Leigh Mitchell,

Deputy Attorneys General, on the brief).

PER CURIAM

In these consolidated appeals, S.R. challenges a judgment entered on April 4, 2003 committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and an order entered on May 28, 2004, after a review hearing, committing him to the STU pending review in twelve months.

S.R. was convicted of two sexual offenses, one on December 5, 1989, when he was twelve, and the other on October 29, 1999, when he was twenty-two. When he was twelve, the victim was eight years old and, after he was adjudicated on a charge of aggravated sexual assault, he was sentenced to a suspended indeterminate term not to exceed four years and continued on probation for eighteen months. Almost ten years later, on October 29, 1999, S.R. pled guilty to criminal restraint, sexual assault and theft by deception. He was sentenced to a term of five years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In April 2002, S.R. was evaluated by three physicians for the purpose of determining whether he should be committed pursuant to the SVPA. Joseph Kwentus, M.D., certified that S.R. should be committed and noted: "For the most part this inmate's sexual offenses spring from his antisocial personality disorder rather [than] specific sexual disorder." Dr. Kwentus diagnosed S.R. as suffering from "possible ADHD under Axis I and antisocial personality disorder under Axis II.

Alvin Friedland, M.D., stated in his report that S.R. should be committed. He made no Axis I diagnosis but found that S.R. had an antisocial personality disorder under Axis II.

In the third report, Michael McAllister, D.O., diagnosed S.R. as suffering from paraphilia NOS, non-consent, Impulse Disorder NOS, alcohol and marijuana abuse under Axis I; and antisocial personality disorder under Axis II. In his report, McAllister stated:

[S.R.] not only has a severe personality disorder manifested by an absence of regard for the rights of others and a sense of entitlement to exploit and abuse others, but a substantial history of impulsive behaviors.

These conditions are consequences of psychological stunting, failure to develop mentally mature - just as are his sexual perversion[s] and his failure to develop socially and morally.

Combined, these conditions, and [S.R.'s] utter lack of remorse or regard for his victims make him (in my medical opinion) highly likely to sexually reoffend if released.

Doctors Friedland and Kwentus testified as to their respective diagnoses at the initial commitment hearing on May 21, 2002. After reviewing the evidence, the trial judge made extended findings of fact and concluded that S.R. "has a serious problem controlling his behavior" and is "highly likely to re-offend sexually again within the reasonably foreseeable future" based upon the Axis II diagnosis of antisocial personality disorder. The judge acknowledged that he could not conclude with any degree of certainty that S.R. suffered from paraphilia, but his antisocial personality disorder made him "a clear danger to the public" and in need of treatment.

A year after the initial commitment, S.R. was reviewed and recommitted for another year. At the review hearing in May 2004, Luis Zeiguer, M.D., and Eleni Marcantonis, Psy.D., testified on behalf of the State. In his testimony, Dr. Zeiguer indicated that S.R. participated in treatment with "some effort and enthusiasm" over the past year but he continues to deny that he committed any offense and maintains that "[h]e's the only victim here." Although Dr. Zeiguer characterized treatment progress as "good" with respect to S.R.'s participation, "it's a failed treatment" because he continues to deny committing the offenses. Dr. Zeiguer diagnosed S.R. as suffering from paraphilia NOS, non-consent and antisocial personality disorder. "[T]he antisocial personality disorder leaves him without the ability to control himself because he perceives [that] other people [are] quite vulnerable. He feels entitled to take from them whatever he wants." He concluded that S.R. posed an "[e]xtremely high" risk of sexually reoffending if he were not confined.

Dr. Marcantonis, a member of the Treatment Progress Review Committee (TPRC), testified at the review hearing that S.R. attends group sessions and is attentive, but he continues to deny the offenses and "generally avoids topics of deeper substance and meaning to sex offender dynamics." The TPRC report noted that S.R. had "failed" a polygraph test on March 18, 2003, but that he reported he "passed" it. Dr. Marcantonis testified, however, that the polygraph is merely a treatment tool and "doesn't have a huge impact on" the treatment phase.

S.R. presented Timothy P. Foley, Ph.D., as a witness on his behalf. Dr. Foley disagreed with the paraphilia diagnosis because "there [were] no indications of any of the kind of paraphilic disorders that are discussed under paraphilia NOS included on my examination or anyone else's." He believed that, given his antisocial personality disorder, S.R. "has far greater potential for future criminal behavior than for future sexual misconduct." After hearing the testimony, the trial judge found Dr. Foley's testimony unpersuasive. She determined that

The diagnosis of antisocial personality disorder is based on the respondent's troubles in school, his fights, the early sex offense, all of which are a juvenile conduct disorder and this continued into adult antisocial personality disorder.

The characteristics of antisocial personality which are relevant to sex offending are, first, the characteristic of violence, in this case for sexually satisfying himself. The characteristic of lack of self control because the respondent, as a characteristic of antisocial personality disorder, sees other persons as prey. Further relevant to sex offending is the characteristic of the feeling of entitlement to take what he wants regardless of the wishes of others. It can be clearly seen that these characteristics are relevant to sex offending. According to Dr. Zeiguer, the other non-sex offenses support the diagnosis of antisocial personality disorder, but he notes that the most serious offenses have been of a sexual nature.

The respondent finds that there are psychopathic features that go with the antisocial personality disorder. These include lying and it's important to note the number of inconsistent stories the respondent has told about the predicate offense when one evaluates whether or not the respondent has the characteristic of lying. It seems clear that he does.

Another . . . psychopathic feature demonstrated by the respondent is his ability to improvise, and this has been seen and demonstrated by him in more than those improvisations which I have referred to in this opinion. The most recent being the seizures. There is also the psychopathic feature of grandiosity, lack of responsibility and lack of empathy.

So, it seems that this is a diagnosis well based in the record. Paraphilia NOS for non-consenting sex with psychopathic features.

The basis for the diagnosis of paraphilia NOS is borne out by the record. The substance abuse is borne out by the record and is indeed conceded by the respondent who takes the position on occasion that the predicate offense was committed while he was intoxicated. And as a result of his intoxication, he either doesn't remember what he did or didn't know what he was doing. So, this is a very real problem connected with his sex-offending behavior.

The judge concluded that S.R. was at extremely high risk to sexually reoffend as a result of his continued denial of the sexual offenses and his classic antisocial behaviors and recommitted S.R. for another year.

In this appeal, S.R. argues:

POINT ONE

THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT SR SUFFERS FROM A MENTAL ABNORMALITY SUCH THAT IT INHIBITS HIS VOLITIONAL CONTROL SO AS TO RENDER IT HIGHLY LIKELY THAT HE WILL COMMIT A SEX OFFENSE IF RELEASED FROM STU

A. The State has Failed to Prove By Clear and Convincing Evidence That SR Suffers a Paraphilia as Listed in DSM IV-TR

B. The State Has Failed to Prove by Clear and Convincing Evidence That the Anti Social Personality Disorder So Inhibits SR Volitional Control So as to Render it Highly Likely That he Will Commit a Sex Offense If Released From STU

S.R.'s core argument misconstrues the SVPA. He maintains that the State must prove by clear and convincing evidence that he suffers from paraphilia. That is not the case, however. The statute requires that the State prove by clear and convincing evidence that S.R. is highly likely to engage in future acts of sexually violent behavior.

The order of civil commitment 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." In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see also In re Commitment of W.Z., 173 N.J. 109, 132 (2002); N.J.S.A. 30:4-27.26 (defining "sexually violent predator"); N.J.S.A. 30:4-27.32(a). These standards were recognized and applied in this case by the judges on both the initial commitment and the review. Our review of commitments pursuant to the SVPA is limited to a determination of whether the trial court abused its discretion. See In Re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.) (applying "clear abuse of discretion" standard), certif. denied, 185 N.J. 393 (2005). The record discloses no such abuse of discretion with respect to the orders under review. Moreover, the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

We have carefully considered the record in light of S.R.'s arguments and the applicable law. We find no abuse of discretion by either judge and we are satisfied that the State has proven by clear and convincing evidence that S.R. suffers from a mental abnormality such that it inhibits his volitional control and renders him highly likely to commit another sexual offense if released. We affirm substantially for the reasons stated by Judge Philip Freedman in his decision on May 21, 2002 and by Judge Serena Perretti in her decision on May 28, 2004.

 
Both judgments are affirmed.

(continued)

(continued)

9

A-4817-02T2

RECORD IMPOUNDED

November 1, 2006