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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-A5430-07T26264-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.B.R. SVP-243-02

_____________________________________

 

Argued December 8, 2008 - Decided

Before Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-243-02.

Justin Edward Caso, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

S.B.R. appeals from a June 26, 2007 order continuing his commitment to the Special Treatment Unit (STU), with a future review date of June 4, 2008, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons stated by Judge Freedman in his comprehensive oral opinion placed on the record on June 26, 2007.

I

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 that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.

II

S.B.R. was convicted of two sexual offenses. In 1989, when S.B.R. was twelve, he committed aggravated sexual assault on an eight-year-old victim; he received probation. In 1999, S.B.R. pled guilty to sexual assault, criminal restraint and theft by deception and was sentenced to five years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The latter offense involved a violent attack on a nineteen-year-old female victim. S.B.R. was initially committed to the STU on April 4, 2003, and his commitment was continued by order of May 28, 2004. We affirmed consolidated appeals from those two orders. Civil Commitment of S.R., Docket Nos. A-4817-02 and A-0649-04 (App. Div. Nov. 1, 2006).

The hearing which gave rise to the current appeal commenced on June 4, 2007. At the beginning of the hearing, Judge Freedman ruled that the STU's business records would be admitted in evidence but that he would not consider any included complex diagnosis or other hearsay for its truth.

The State presented testimony from a psychiatrist, Dr. Stanley Kern, who had interviewed S.B.R. on January 31 and May 23, 2007. While Dr. Kern reviewed S.B.R.'s entire treatment history, he formed his own independent diagnosis. According to Dr. Kern, the fact that S.B.R. was so young when he committed his first sexual offense "shows a deeply ingrained need to act . . . [in] this fashion . . . both criminally and sexually." He also opined that S.B.R.'s lengthy history of non-sexual offenses showed "a need to act out in an antisocial fashion without regard to . . . other people's needs or wants." The fact that he committed another sex offense ten years later "indicates a need to act out in this fashion over a prolonged period of time."

In the interviews with Dr. Kern, S.B.R. denied committing the second offense and claimed that nothing sexual had happened at all during that incident. Dr. Kern's review of S.B.R.'s treatment history revealed that S.B.R. had told various versions of this event, sometimes admitted "some sexual touching" or "kissing" and other times denying that anything sexual occurred. Dr. Kern opined that S.B.R. would not benefit from treatment until he confronted and dealt with that offense. According to Dr. Kern, S.B.R. did not have a relapse prevention plan, had not demonstrated empathy for his victims or remorse, and did not understand his sexual triggers, that is, the kinds of events that could lead to a relapse of sexually offending. S.B.R. claimed never to have experienced deviant arousal, an assertion Dr. Kern disbelieved in light of his two sex offenses.

Dr. Kern also found significant that S.B.R. was still in Phase-2 of treatment. While he participated in therapy, he focused on other participants rather than "discussing his own problems." In speaking with Dr. Kern, S.B.R. also minimized the incident with the eight-year old girl, claiming that she initiated the sexual contact. Dr. Kern explained that showing empathy for the victims was important "to understand how other people would experience any attack upon them in order to avoid getting into that type of situation."

Dr. Kern diagnosed S.B.R. as having "paraphilia N.O.S., alcohol and cannabis abuse[,] and antisocial personality disorder." The substance abuse problems were significant because they were "facilitators" or "disinhibitors" which would make a person "more apt to act out in an antisocial fashion." Paraphilia is a deeply ingrained problem, which treatment can help by enabling a person to "understand it and be able to control their impulses." Since S.B.R. avoided discussing "his own issues," he had not made progress toward controlling his impulses. Dr. Kern opined that due to his paraphilia, anti-social personality disorder and substance abuse problems, S.B.R. presented a high risk to sexually re-offend in the foreseeable future if released, because "he really hasn't addressed his problems in the course of treatment."

The State also presented testimony from a psychologist, Dr. Doreen Stanzione who confirmed the report of the Treatment Progress Review Committee (TPRC). The TPRC recommended that S.B.R. remain in Phase-2 based in significant part on his continuing failure to acknowledge or deal with his second sexual offense.

In rebuttal, S.B.R. presented testimony from a psychologist, Dr. Luis Rosell. Asked to address the issue of S.B.R.'s denial of his prior offenses, Rosell testified that there is no significant connection between denying a past offense and the likelihood of future re-offense. He also testified that S.B.R. had benefited from treatment even though he denied sexually assaulting the female adult victim. He downplayed the significance of S.B.R's two offenses, characterizing the first offense as possibly just youthful sexual experimentation.

Dr. Rosell did not diagnose S.B.R. as having paraphilia, because his sexual interest was not exclusively or primarily in deviant sexual activity, but the doctor did diagnose him as having a personality disorder N.O.S. with antisocial features. He testified that this condition would predispose a person "to engage in general recidivism" but not necessarily "sexual violent behavior." Dr. Rosell concluded that S.B.R. was "less likely than not to commit future acts of sexual violence." On cross-examination, he testified that "I look at paraphilia different than a lot of other people do."

On June 26, 2007, Judge Freedman issued a comprehensive seventy-three page oral opinion. He emphasized that he considered included hearsay in the ADTC and STU reports only for the purpose of evaluating the credibility of the experts who relied on those reports; he did not consider any included hearsay for its truth. After reviewing S.B.R.'s lengthy overall criminal history, the judge specifically reviewed the sexual assaults, noting S.B.R.'s attempts "to alter history" by giving repeated contradictory accounts of these incidents. Judge Freedman did not credit Dr. Rosell's testimony that S.B.R. did not have a pattern of sexually offending. He also explained why he generally did not find Dr. Rosell to be a credible witness and why he was unpersuaded by the treatise on which Dr. Rosell based his psychological theories.

Disagreeing with Dr. Rosell, the judge concluded that an offender's admitting a sexual offense was "connected to engaging and completing treatment, which can reduce risk." In that respect, he credited the opinion of Dr. Kern. However, he did not accept Dr. Kern's diagnosis of paraphilia, although the judge accepted both experts' diagnosis of antisocial personality disorder. Judge Freedman also concluded that in light of S.B.R.'s history of sexual offenses, as well as his commission of other criminal offenses while on probation, and his lack of sufficient progress in therapy, S.B.R. was highly likely to commit additional sexual offenses if released. Judge Freedman specifically noted that the treatment providers described S.B.R. as "resistant to self-examination of his own sexual offending." As a result, the judge concluded that "[h]e's done some treatment, but it hasn't really helped him." The judge also concluded that S.B.R. could not safely be conditionally released:

I'm satisfied by clear and convincing evidence here, very clear and convincing, that [S.B.R.'s] personality disorder and his alcohol and drug abuse diagnoses predispose him, as his record shows, to engage in acts of sexual violence and that, if he were released, his . . . personality disorder, which is . . . a kind of an impulse control disorder in and of itself, a personality disorder that would create a serious inability to control his sexually violent behavior.

It's . . . true, as Dr. Rosell said, . . . he will undoubtedly commit other crimes as well. But amongst those crimes, within the reasonably foreseeable future, there'll undoubtedly be a sex crime and . . . the chances of that . . . happening sooner than late go up even higher if [he] . . . starts taking drugs and doing alcohol again. I think it's to such a degree that he would be highly likely to do this if he were released.

III

On this appeal, our review of Judge Freedman's decision 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 In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge Freedman's factual and legal conclusions, including his detailed credibility determinations, and we affirm substantially for the reasons stated in his oral opinion.

 
Contrary to S.B.R's contentions on this appeal, we find no basis to overturn Judge Freedman's decision to reject Dr. Rosell's opinion. Moreover, a diagnosis of paraphilia or other sexual compulsion is not required to justify commitment under the SVPA. W.Z., supra, 173 N.J. at 129. There is sufficient credible evidence to support Judge Freedman's conclusion that S.B.R. remains at high risk to reoffend if released.

Affirmed.

S.B.R. is sometimes known as S.R.

Dr. Kern defined paraphilia as "recurrent, intense arousing fantasies or behaviors that occur over a period of at least six months."

(continued)

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9

A-6264-06T2

RECORD IMPOUNDED

December 17, 2008