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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0644-06T20644-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.C.S. SVP-7-99

________________________________________________________________

 

Argued March 14, 2007 - Decided April 10, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Docket

No. SVP-7-99.

Patrick Madden, Assistant Deputy Public

Advocate, argued the cause for appellant

(Ronald K. Chen, Public Advocate,

attorney).

Mark Singer, Deputy Attorney General,

argued the cause for respondent (Stuart

Rabner, Attorney General, attorney).

PER CURIAM

R.S.C. appeals an order entered August 22, 2006 continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

An involuntary civil commitment can follow service of a sentence, or other criminal 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 132-34; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual is committed to the STU, annual review hearings determine whether the person remains in need of commitment. 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 Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35; 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). "[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 also N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35; W.Z., supra, 173 N.J. at 133.

In 1989, R.C.S. was convicted of third degree aggravated criminal sexual contact when he sexually assaulted his nine-year-old male cousin. He was thereafter sentenced to five years of probation. In 1993, during this probationary period, R.C.S. was convicted of four counts of second degree sexual assault of four boys between the ages of nine and twelve and he received a seven-year sentence. In 1999, prior to completion of this sentence, the State petitioned for his civil commitment pursuant to the SVPA. This petition was granted, and then continued during subsequent review hearings in June of 2001, October of 2002, August of 2005, and most recently, in August of 2006. Both the 2001 and 2005 determinations were reviewed, and affirmed by the Appellate Division.

On appeal, R.C.S. contends the trial court erred by not properly crediting his treatment gains and by concluding that the State had provided clear and convincing evidence warranting his SVP commitment. Thus, the only issue on appeal is whether R.C.S.'s treatment has mitigated his previously determined risk of re-offending.

At the hearing, the State presented the testimony of Dr. Terranova and Dr. Kern. Both diagnosed R.C.S. with pedophilia, attraction to males exclusively, substance dependence, personality disorder, and borderline intellectual functioning. They agreed that R.C.S.'s progress over the past year was slow, and that this was due to R.C.S.'s failed mastery of his sexual assault cycle and inability to empathize with his victims. Dr. Terranova testified that R.C.S. was a provoker, an instigator, and would get frustrated easily during group therapy sessions. This, both doctors agreed, was consistent with his history of unstable relationships, and led to a bogging down of his treatment progress. Dr. Kern explained that R.C.S. has not mastered the "sexual assault cycle" and has "yet to display mastery of strategies, preventing him from relapsing."

Both doctors concluded that R.C.S. is likely to reoffend if released. Dr. Terranova's conclusion relied in part on a Static-99, which revealed a score of four. This put R.C.S. in a class of individuals likely to reoffend at rates of 26% over five years, 31% over 10 years, and 36% over 15 years. Dr. Kern, without the benefit of a Static-99 test, cast R.C.S.'s likelihood to reoffend if released as "significant."

Also at the hearing, respondent presented Dr. Foley, who agreed with the State's witnesses that R.C.S. displayed evidence of pedophilia, with an attraction to males, poly-substance abuse, and neurological and learning disability. He testified that his clinical interview of R.C.S. revealed that he not only experienced victim empathy, but was also generally willing to engage in therapy at the facility. As for progress, Dr. Foley discussed a general display of long-term progress, but failed to provide specific examples from the year subject to review. Dr. Foley also conducted a Static-99 test, although his administration resulted in a score of five, placing R.C.S. in the category of individuals who recidivate at the rate of 33% after five years, 38% after 10 years, and 40% after 15 years.

In her oral opinion of August 22, 2006, Judge Perretti found that R.C.S. was "approaching treatment refusal" and there was no mitigation of respondent's risk to reoffend by treatment, and that this was agreed upon by all testifying experts. Therefore, the court concluded, the State had proven, by clear and convincing evidence, that the respondent continued to be a sexually violent predator predisposed to committing sexually violent acts.

The record is sufficient to support Judge Perretti's determination to continue R.C.S.'s commitment. Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also V.A., supra, 357 N.J. Super. at 63. The record reveals no such abuse with respect to the order under review.

Affirmed.

 

(continued)

(continued)

6

A-0644-06T2

RECORD IMPOUNDED

April 10, 2007