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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0941-07T20941-07T2

IN THE MATTER OF CIVIL

COMMITMENT OF R.L.C.

___________________________________

 

Argued September 2, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 453-07.

Thomas G. Hand, Designated Counsel, argued the cause for appellant R.L.C. (Ronald K. Chen, Public Advocate, attorney; Mr. Hand, on the brief).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Albano, on the brief).

PER CURIAM

R.L.C. appeals from a judgment committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVP Act), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I.

The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

At approximately 11:00 p.m. on April 14, 1985, M.A., a fifteen-year-old female, was standing at the intersection of Lincoln Avenue and Summit Street in Ridgefield. M.A. was talking to a friend when the two were approached by a man who asked the girls which one of them "wanted to have some fun?" The man, later identified as R.L.C., then grabbed M.A. by the arm and abducted her at gunpoint. M.A.'s friend ran home, informed her parents what had happened, and the police were notified.

While canvassing the area near the abduction, a Ridgefield police officer noticed a car parked at the Ridgefield police shooting range. The officer saw that no one was inside the vehicle. He then observed R.L.C. on top of M.A., who was naked, on the ground behind the range. R.L.C. immediately fled and M.A. ran to the officer. A gun holster and revolver were later recovered at the shooting range. The revolver had previously been reported stolen.

In her statement to police, M.A. reported that R.L.C. had taken her to a car and then drove to the parking lot. Once parked, R.L.C. told M.A. to get undressed and removed some of her clothing himself. He then ordered her out of the car and took her behind a building. R.L.C. then demanded M.A. perform oral sex on him and he then performed oral sex on her. M.A. stated that R.L.C. was stopped from assaulting her further by the arrival of the police officer.

R.L.C. was subsequently arrested in Suffolk County, New York, in connection with three armed robberies that occurred in March 1986. In each robbery, R.L.C. had approached women and demanded money and their shoes. When the police attempted to apprehend R.L.C. in connection with the robberies, he shot at the police and then shot himself in the head. R.L.C. suffered a "grazing" injury. R.L.C. pled guilty in New York and was sentenced to two concurrent twelve-year terms of incarceration, with six years to be served before parole eligibility.

The gun involved in the New York crimes had been stolen from the same person as the gun left behind at the scene of M.A.'s rape in New Jersey. R.L.C. was subsequently charged with two crimes in New Jersey.

On May 31, 1988, R.L.C. pled guilty in New Jersey to theft of a motor vehicle, N.J.S.A. 2C:20-3; theft of a handgun, N.J.S.A. 2C:20-3; kidnapping, N.J.S.A. 2C:13-1(b)(1); and aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4). At the same time, R.L.C. pled guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c), for the rape of his thirteen-year-old stepdaughter, T.D. R.L.C. had engaged in an ongoing sexual relationship with T.D., which he continued even after he was imprisoned for the New York offenses by having her mail him pictures of herself naked.

With respect to the two New Jersey guilty pleas, R.L.C. was sentenced to an aggregate thirty-year term of imprisonment with fifteen years of parole ineligibility. He was evaluated by the Adult Diagnostic and Treatment Center (ADTC), which determined that his conduct did "not appear to be part of a repetitive and compulsive pattern."

On February 20, 2007, prior to R.L.C.'s scheduled release from prison, the State petitioned for civil commitment pursuant to the SVP Act. On February 23, 2007, the Law Division granted an order for temporary commitment pending a final hearing.

The final hearing was held on September 27, 2007. The State presented two expert witnesses. The first, Dr. Brian Friedman, a psychologist, had attempted to interview R.L.C. on August 10, 2007, but R.L.C. refused to speak with him. Consequently, Friedman's assessment of R.L.C. was based on police reports, victim statements, pre-sentence reports, R.L.C.'s general criminal history, and statements from R.L.C.'s New Jersey plea hearing. Friedman found that R.L.C. did not take responsibility for the assaults on M.A. or T.D. Rather, R.L.C. referred to the victims as the "aggressor" or proffered that the encounters were "consensual."

With respect to the armed robberies committed in New York, Friedman testified to his opinion that these incidents were sexual in nature because:

[R.L.C.] clearly was displaying certain, some fetishistic behavior regarding women's shoes and women's feet -- or, excuse me, girl's feet in that regard, painted toenails, etcetera. The fact that he robbed these women specifically of their footwear and made comments about their painting their toenails suggest to me that this was fueling his fetishism.

In his own testimony, R.L.C. admitted that he had a sexual interest in one victim's shoes and feet.

Based on R.L.C.'s recidivism, Friedman found "that the deterrent effect of incarceration did not have an[y] effect on him." Further, Friedman concluded that R.L.C. "seems to view the rules as really not being very important to him. And it's not important for him to follow them." This conclusion was supported by recent reports that stated that R.L.C. was "verbally aggressive" and demonstrated a "sense of entitlement, . . . and an inability to accept responsibility for his actions."

Friedman ultimately diagnosed R.L.C. with antisocial personality disorder and with paraphilia not otherwise specified (NOS), referring to his "recurring and intense fantasies, urges and/or behaviors involving sexual arousal to p[re]pubescent females." Additionally, he diagnosed R.L.C. with fetishism involving feet or shoes, or both. He stated that "this arousal pattern is not something that would be expected to just completely go away on its own" and that statements made by R.L.C. "suggest that he still sees very little wrong with what he did." Friedman testified that "there's little reason to believe, if he doesn't think there's anything wrong with it, that he wouldn't do it again." Friedman testified that, if R.L.C. was released, there would be "a very high risk [that he would] commit future sexual offenses as well [as] generally violent offenses of any nature, but specifically sexual offenses."

The second expert for the State was a psychiatrist, Dr. Luis Eliu Ayez Zeiguer. Zeiguer had first attempted to interview R.L.C. on March 12, 2007, but R.L.C. refused. However, he successfully interviewed R.L.C. on August 7, 2007. During the interview, R.L.C. denied assaulting M.A. and T.D., asserting that the encounters were consensual. Zeiguer diagnosed R.L.C. with "a very severe personality disorder, mainly with antisocial features," paraphilia NOS, and fetishism. Zeiguer testified that "personality disorder characteristic[s] . . . persist through time. . . . [This is due to] the [] inability to learn from experience." He characterized the risk that R.L.C. would commit another sexual offense in the foreseeable future, unless confined, as "very, very high."

R.L.C. testified at the hearing. He stated that he had remorse for what he had done. He maintained on cross-examination that if T.D. had not come on to him, he never would have had sexual intercourse with her.

The commitment judge placed her decision on the record on October 2, 2007. After reviewing the facts of the assaults on M.A. and T.D., as well as the three robberies in New York, the commitment judge stated:

In the face of such overwhelming proofs, the respondent's various denials, accusations against the victims, minimizations and justifications are taken by the experts and this Court as compelling elements of the respondent's cognitive distortions, as well as the demonstrat[ion of] deceitful[] and manipulative[] characteristics of the personality disorder diagnosed by the two experts who testified.

Finding the State's experts credible, the commitment judge agreed with them that R.L.C. "presents a very high risk for sexual reoffending and indeed any crime of violence." She concluded:

The evidence presented by the State was clear and convincing and uncontradicted. The Court is clearly convinced that [R.L.C.] is a sexually violent predator. He suffers from abnormal mental conditions and personality disorders that influence his emotional, cognitive, and volitional functioning so as to predispose him to commit sexually violent acts.

He has demonstrated that he has serious difficulty controlling his sexually violent behavior. He has committed sexually violent acts after he had been incarcerated, was not deterred by prior penalties. . . .

It is clear beyond doubt that this respondent is highly likely to commit sexually violent acts if he is not confined as a sexually violent predator. The respondent has indicated to the Court that he does not need treatment, that he does not consider himself a sex offender, that he distinguishes himself from others who are committed.

It is not expected that [R.L.C.] will be an active participant in treatment. However, it is essential that this person be committed to a secure facility for the protection of the public.

The judge signed an order of commitment to the STU the same day. This appeal followed.

II.

On appeal, R.L.C. raises the following points:

POINT ONE: R.L.C.'S INVOLUNTARY COMMITMENT UNDER THE [SVP ACT] VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION, ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE R.L.C.'S TREATMENT IS A "SHAM." (Not Raised Below).

POINT TWO: THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT R.L.C.

POINT THREE: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.L.C. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A.

Having reviewed R.L.C.'s arguments with respect to his first two points on appeal, we conclude that, in light of the facts in the record and the applicable law, the arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We adhere to our opinions in In re Civil Commitment of W.X.C., 407 N.J. Super. 619 (App. Div. 2009), and In re Civil Commitment of A.E.F., 377 N.J. Super. 473 (App. Div.), certif. denied, 185 N.J. 393 (2005) with respect to those issues. See also In re Commitment of J.M.B., 197 N.J. 563, 597 (2009) (mental health professionals use of reports); In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 29-30 (App. Div.) (holding that committee has no right to refuse psychiatric examinations and cannot benefit from an unjustified refusal), certif. denied, 188 N.J. 492 (2006).

B.

We turn to R.L.C.'s contention that the State failed to provide clear and convincing evidence that he is a sexually violent predator appropriately subject to civil commitment under the SVP Act.

Our review of a civil commitment under the SVP Act is very limited. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We "must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). We may only modify a reviewing judge's determination where we find a "clear abuse of discretion." In re Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

As stated in In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26), to find one a "sexually violent predator," a person must have been convicted of a "sexually violent offense" and suffer "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."

A "sexually violent offense," carries two definitions:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.A. 2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.A. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or

(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

[N.J.S.A. 30:4-27.26.]

The SVP Act defines a "mental abnormality" as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. "Likely to engage in acts of sexual violence" is defined so as to require evidence that "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid. According to the Court in W.Z., supra, 173 N.J. at 127, "the nomenclature of 'mental abnormality' or 'personality disorder' is not dispositive. What is important is that . . . the mental condition must affect an individual's ability to control his or her sexually harmful conduct."

However, "the statute does not impose a requirement of complete loss of control, nor [does the Court] require one." Id. at 128. Indeed, an individual need not be diagnosed with sexual compulsion, nor are there limits to any other "class [of] those with identified psychiatric diagnoses." Id. at 129. Rather,

the adjectives "volitional," "emotional," or "cognitive" when describing the reasons for an individual's serious difficulty with control over his or her behavior indicates that the Legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the [SVP] Act's reach.

[Ibid.]

There can be no doubt that R.L.C. was convicted of "sexually violent offense[s]." In addition to the New Jersey offenses involving M.A. and T.D., the commitment judge noted that the New York offenses, which were related to R.L.C.'s fetishism, involved weapons. She found that he was "was violating the rights of others in his effort to obtain the object of his sexual gratification."

The State offered two mental health professionals as experts. Friedman diagnosed R.L.C. with antisocial personality disorder and paraphilia NOS, referring to his "recurring and intense fantasies, urges, and/or behaviors involving sexual arousal to p[re]pubescent females. . . ." He also noted R.L.C.'s fetishism involving feet or shoes, or both. Zeiguer diagnosed R.L.C. with "a very severe personality disorder, mainly with antisocial features," paraphilia NOS, and fetishism.

Both experts testified to a high risk of future offenses were R.L.C. to be released. Friedman testified that R.L.C. "presents as a very high risk to commit future sexual offenses as well [as] generally violent offenses of any nature, but specifically sexual offenses." Zeiguer characterized the risk that R.L.C. would commit another sexual offense in the foreseeable future, unless confined, as "very, very high."

With respect to the issue of inability to control sexually violent behavior, Friedman testified that R.L.C.'s "arousal pattern is not something that would be expected to just completely go away on its own"; that R.L.C.'s statements "suggest that that he still sees very little wrong with what he did"; and, consequently, that "there's little reason to believe, if he doesn't think there's anything wrong with it, that he wouldn't do it again." Zeiguer testified that R.L.C.'s "personality disorder characteristic[s]" would "persist through time" because of his "inability to learn from experience." R.L.C.'s inability to learn from his experience was illustrated at the hearing when he sought to blame one of his victims, T.D., for his treatment of her. The commitment judge found that R.L.C.

has demonstrated discontrol through his long history of repetitive sex offending. His extremely serious antisocial personality disorder results in his lacking any conscience. He wants what he wants at once and has demonstrated that he can make poor choices in securing his desires.

The requirements of W.Z., supra, 173 N.J. at 126-27, with respect to control have been satisfied.

The commitment judge found both experts to be credible, concluding that R.L.C. "presents a very high risk for sexual reoffending and indeed any crime of violence." She characterized the evidence presented by the State as "clear and convincing and uncontradicted." Her findings and conclusions in that regard were fully supported by the record. Consequently, we affirm.

 
Affirmed.

Eligibility for treatment at the ADTC during incarceration is not a prerequisite for civil commitment under the SVP Act. See In re Commitment of J.S.W., 371 N.J. Super. 217, 222-23 (2004), certif. denied, 183 N.J. 586 (2005).

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A-0941-07T2

RECORD IMPOUNDED

September 30, 2009