IN THE MATTER CIVIL COMMITMENT OF M.F.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2611-06T22611-06T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

M.F.C. SVP-303-03

 

Argued April 18, 2007 - Decided May 8, 2007

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, SVP-303-03.

Heather Ellis Cucolo, Assistant Deputy Public Advocate, argued the cause for appellant, M.F.C. (Ronald K. Chen, Public Advocate, attorney).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent, State of New Jersey (Stuart Rabner, Attorney General, attorney).

PER CURIAM

M.F.C. appeals from an order of January 10, 2007, continuing his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The proofs at the review hearing, and the judge's findings based on those proofs, satisfied the statutory requirements for continued commitment, as detailed in In re Commitment of W.Z., 173 N.J. 109, 130 (2002). While appellant argues that the weight of the evidence does not support his continued commitment, we find that argument to be without merit. Accordingly, we affirm.

Following a hearing, Judge Perretti entered a judgment on July 10, 2003, committing appellant to the Special Treatment Unit. Following a review hearing in 2004, appellant's commitment was continued. He appealed and we affirmed. In re Civil Commitment of M.F.C., No. A-6312-03 (App. Div. May 25, 2005).

Judge Freedman conducted review hearings on December 6, 2006 and December 14, 2006. The State presented the testimony of Dr. Michael McAllister, a psychiatrist, and Dr. Brian Friedman, a psychologist. Appellant presented the testimony of Dr. Daniel Greenfield, a psychiatrist, along with a member of appellant's treatment team.

Dr. McAllister prepared a report dated December 5, 2006, which he incorporated into his testimony at the hearing. While he relied on reports of other experts, as well as police reports, presentence reports, statements appellant made to the police, and other information, he testified that he arrived at his own diagnosis independently.

Dr. McAllister reviewed appellant's prior criminal history. It includes a sexual assault on an eighty-three-year-old woman in June 1981, after he broke into her bedroom wearing a ski mask. While attempting to force her to perform fellatio, he threatened to kill her if she did not cooperate and tried to strangle her with a cord. After a struggle in which his mask came off, he fled. When he got home, he raped his wife.

In October 1982, he approached a fifty-year-old woman in a parking lot, forced her into the front seat of her car, and at knife-point, required her to drive approximately twenty-five minutes; he then ordered her to perform fellatio on him. Subsequently, he anally raped her and again made her perform fellatio on him. The doctor considered his conduct to be associated with sexual sadism.

In April 1984, appellant flattened a tire on a car belonging to a seventy-seven-year-old woman, offered to fix it for her, and then threatened to kill her. He led her into the woods and forced her to perform fellatio by choking her and kneeling on her chest. Finally, in November 1985, he flattened a seventy-four-year-old woman's car's tires. After offering to fix the flat, he tied her hands behind her back with a wire, and forced her to perform fellatio upon him. He then drove her to her residence and stole $160 from her home.

Appellant subsequently pleaded guilty to the offenses. He was sentenced to state prison, and at some point received treatment at the Adult Diagnostic and Treatment Center. Since being placed in the Special Treatment Unit, appellant had been an active participant and has made some improvement. He has admitted to his coercive deviant fantasies.

Appellant had been sexually molested by his mother. Dr. McAllister indicated that appellant had not addressed the sexual molestation by his mother, and that he believed that appellant's preference for older women is related to that abuse. Dr. McAllister concluded, after reviewing treatment notes, and having interviewed appellant, that appellant had not "significantly addressed in a thorough fashion, the way relationship aspects or relationship difficulties and his own contribution to those relationship difficulties contributed to his sexual deviance." He found that appellant failed to address his responsibility for all of his victims.

During his interview with appellant, the doctor indicated that appellant "omitted important and incriminating aspects" of his prior history, even though he had written those aspects down in the past. Significantly, according to Dr. McAllister, appellant attempted to persuade him that his primary motivation in committing the prior offenses had been for theft, with his sexual conduct being secondary. The doctor considered appellant's position on this issue to be a "very substantial contrast" to what appellant had admitted in his prior maintenance contract, that he had "driven around for hours thinking of forcing a woman to have sex."

The doctor diagnosed appellant with paraphilia, not otherwise specified; alcohol, hallucinogen and marijuana abuse; amphetamine dependence; dysthymic disorder, a long-term depressive condition; and a personality disorder, not otherwise specified. Dr. McAllister concluded that appellant's illnesses caused him serious difficulty controlling his sexually offending behavior, and that he is at great risk to reoffend.

Dr. McAllister did not agree that appellant could be released with conditions, such as to a residential treatment facility. He testified that appellant had not "substantially and thoroughly addressed either his own history of molestation by his mother, or the full . . . aspects of his relationship difficulties in treatment."

Dr. Friedman prepared the report of the Treatment Progress Review Committee (TPRC) dated December 4, 2006. The report was based upon a review of appellant's treatment records and criminal history, and conversations with the treatment team. He testified that appellant was currently in phase three of his treatment, which he described as the "core or intensive phase" of a committee's treatment program. He recommended that appellant remain in phase three, even though the treatment team had recommended advancement to phase four. One of the reasons for his disagreement with the treatment team is that appellant had not completed a sex offense history polygraph examination. According to Dr. Freedman, appellant needed to add additional victims he had sex with unconscious girls as an adolescent to his history, and then have that history be subject to a polygraph.

Dr. Friedman testified that appellant had been compliant with his medication and had a "solid understanding" of his offense cycle. He had not been involved in problematic behavior at the facility.

During his interview with Dr. Friedman, appellant indicated that he was "spinning his wheels" and believed he had accomplished everything he could at the STU. That concerned Dr. Friedman, as he wanted appellant to be open to the idea that he could make additional progress.

Dr. Friedman also questioned whether appellant was straightforward during the interview when he downplayed the role of arousal in his conduct, despite his discussion of his fantasies of aggressive sexual behavior towards others. Appellant mentioned only the four victims who were the subjects of his criminal convictions, but failed to acknowledge a number of other victims, including his wife, and the young girls he molested when he was an adolescent. Dr. Friedman expected someone in a "high phase of treatment to volunteer that information." Dr. Friedman also had a concern about appellant's denial that his sexual offenses were heavily premeditated. In using the Static 99 actuarial tool, Dr. Friedman testified that appellant was in the medium-high risk category for reoffense.

Dr. Friedman testified that appellant still needed to "delve more into the planning involved in his offenses." He needed to "include his unreported victims" in his written work and revise his sexual offense history questionnaire and be rescheduled for a polygraph.

Testifying for appellant, Dr. Greenfield concluded that appellant suffered from "[s]ubstance abuse and dependence, especially amphetamines"; he had a dysthymic disorder; a history of paraphilia, which Dr. Greenfield considered to be inactive, in "institutional remission;" and an "anti-social personality disorder by history," which was also in institutional remission. The doctor indicated that the Escher Street Housing Project, a residential rehabilitation program in Trenton, would be "suitable and appropriate" for appellant "when he got to the point of being able to be discharged either outright or conditionally." He indicated that if the transition were to occur, it should be gradual and incremental. Dr. Greenfield testified that appellant was not highly likely to reoffend sexually.

On cross-examination, Dr. Greenfield acknowledged that in preparing his report, he had not read the recent TPRC report or Dr. McAllister's report. Nor had he read appellant's personal maintenance contract. When asked if he believed that appellant was ready for a nonconditional discharge, Dr. Greenfield indicated that he was not. He considered that to be "inadvisable" from a practical clinical perspective. He believed, however, that the restraints on appellant should be removed over a period of time, to "[t]est the waters," to see if appellant could adjust.

Judge Freedman rejected Dr. Greenfield's testimony and accepted the testimony of Dr. McAllister, and to some degree, Dr. Friedman, and concluded that appellant would have serious difficulty controlling his sexually violent behavior if released, and he would be highly likely to reoffend. The judge did not believe the record supported even a conditional discharge.

The evidence supports the judge's conclusion. If a person committed pursuant to the SVPA continues to be a sexually violent predator, conditional discharge is not an option. In re Civil Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). Here, the evidence supports the trial judge's conclusion that M.F.C. is highly likely to reoffend if the commitment is not continued. The testimony of Dr. McAllister and Dr. Friedman supports the trial judge's conclusion. We defer to the trial court's discretion unless the record demonstrates that it has been clearly abused. In re Civil Commitment of R.Z.B., ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 17); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We find no abuse of discretion here.

 
Affirmed.

(continued)

(continued)

9

A-2611-06T2

RECORD IMPOUNDED

May 8, 2007