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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6354-05T26354-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.C.R. SVP-274-02

_________________________________

 

Argued March 14, 2007 - Decided April 9, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. 274-02.

Lewis P. Sengstacke, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

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

PER CURIAM

D.C.R. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. He appeals from an order of July 19, 2006, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of July 19, 2006.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32c(2).

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 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), rev'd o.g., 183 N.J. 536 (2005); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32a; N.J.S.A. 30:4-27.35. "[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 W.Z., supra, 183 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment under the SVPA. If treatment subject to conditions of release is sufficient to reduce the risk of commission of another sexually violent offense -- i.e., if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the "highly likely" standard required for commitment -- the plan is relevant to the adequacy of the proof that the person is in need of commitment under the SVPA. J.J.F., supra, 365 N.J. Super. at 501-02.

Our review of a commitment pursuant to the SVPA is narrow. In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Governed by this standard, we are satisfied that the record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

By way of background, in 1998 and 2001, D.C.R. was convicted of aggravated sexual assault and sexual assault, respectively. The aggravated sexual assault conviction stemmed from the October 4, 1997 repeated molestation of an adult victim while she was sleeping in a car. The sexual assault charges were based on a series of sexual assaults committed from May 6, 1996 through December 31, 1996 against a 13-year-old victim. D.C.R. received an aggregate of five years imprisonment for the crimes. Before his conviction for these sexually violent offenses, D.C.R. had been charged with three other serious sexual offenses.

D.C.R. was initially committed by order of January 23, 2003, which we affirmed on February 6, 2006. In re Commitment of D.C.R., No. A-3270-02T2 (App. Div.) (slip op. at 11).

The hearing that preceded entry of the order under appeal was held on July 14, 2006. At the hearing, D.C.R. presented no testimony on his behalf.

The State, on the other hand, offered the testimony of Drs. Robert Carlson and Pogos Voskanian. Both experts diagnosed D.C.R. with paraphilia, alcohol dependence, and a personality disorder not otherwise specified with antisocial and narcissistic features. Both experts also agreed that D.C.R. has made insignificant progress to date.

According to Dr. Carlson, D.C.R. has failed to address his sexual pathology in detail or in clear focus and has dealt with the critical issues of his sexual violence only in a most superficial fashion. Dr. Voskanian concurred in this view, finding that D.C.R. greatly minimizes his criminal sexual behavior and is therefore unable to explain the dynamics of his offending conduct. Consequently, D.C.R. is merely "taking his first steps" and remains a high risk to re-offend because his sexual pathology remains largely unexplored, and he continues to have serious difficulty controlling his sex offending behavior.

Based on this evidence, Judge Perretti concluded:

It can clearly be seen that the respondent has been participating in substance abuse to the exclusion of participation in sex offending specific therapy. The respondent has been for these many years a treatment resistor. He remains an untreated sex offender and this is clearly disclosed in the treatment notes.

. . . .

The evidence that was presented was clear and convincing. The diagnosis by Dr. Carlson and Dr. Voskanian is not contradicted. The treatment notes and the report of the TPRC clearly establish that the respondent has made no progress whatever in sex offending treatment. It is therefore concluded in accordance with the evidence that the respondent continues to be a sexually violent predator who suffers from abnormal mental conditions and personality disorders that adversely impact his emotional cognitive and volitional capacities, so as to predispose him to commit sexually violent acts.

He has serious difficulty controlling his sexually violent behavior as appears from the record of his sex offending. It is highly likely that the respondent will recidivate if not continued in treatment and held in secure custody at the STU. There will be a review in one year.

 
The record amply supports Judge Perretti's determination to continue D.C.R.'s commitment. The conclusion that D.C.R. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

Affirmed.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

6

A-6354-05T2

RECORD IMPOUNDED

April 9, 2007