IN THE MATTER OF THE CIVIL COMMITMENT OF J.A.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2508-07T22508-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.A.S., SVP 469-07

________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-469-07.

Ronald K. Chen, Public Advocate, attorney for appellant J.A.S. (Alison Perrone, Designated Counsel, on the brief).

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

PER CURIAM

Appellant J.A.S. is a resident of the Special Treatment Unit ("STU"), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order entered on January 10, 2008, which continues his commitment after an evidentiary hearing. We affirm the order, substantially for the reasons set forth by Judge Perretti in her oral decision of January 9, 2008.

An involuntary civil commitment under the SVPA can follow an offender's service of a sentence, or other criminal disposition for a sexually violent offense, when he or she "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. See also In re Commitment of J.M.B., 197 N.J. 563, 570-72 (2009) (detailing the commitment standards under the statute). The State must prove the statutory elements by clear and convincing evidence. N.J.S.A. 30:4-27.32; J.M.B., supra, 197 N.J. at 571.

As defined by the statute, a mental abnormality is "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." N.J.S.A. 30:4-27.26. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128, see also J.M.B., supra, 197 N.J. at 571.

In reviewing trial court orders committing offenders under the SVPA, we apply a narrow scope of review. We only "reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "[C]ommitting judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Appellant in the present case was convicted in 1986 of first-degree aggravated sexual assault, which is an enumerated "sexually violent offense" under the SVPA. See N.J.S.A. 30:4-27.26(a). In that crime of sexual violence, appellant threatened the victim, K.A., a former girlfriend, at knifepoint, unbuttoned his pants, and vaginally raped her, telling the victim that he would kill her family if she screamed. He then tied her hands and feet and left. The court sentenced appellant to fifteen years in prison. He was paroled in 1993.

The record further indicates in 1996, appellant began stalking a sixteen-year-old girl, J.P., whom he had recently dated. J.P. obtained a restraining order against appellant but he violated it three times. He was also convicted of burglary in August 1996 and weapons offenses in 2004. The 2004 conviction involved him being in possession of a knife, stun gun, and handcuffs, as part of a so-called "rape kit."

Appellant was released again in March 2007. Five days later he was arrested for failing to register as a sex offender. The police found that he had been using a computer at the public library, trying to locate J.P. on the Internet. The State moved to have him civilly committed under the SVPA. An order of temporary civil commitment then issued, followed by a two-day plenary hearing before Judge Perretti in January 2008 that is the subject of this appeal.

The State presented two expert witnesses at the hearing. Dr. Brian Friedman, a clinical psychologist at the STU, diagnosed appellant with antisocial personality disorder, with significant psychopathic traits. He opined that this disorder predisposes appellant to commit acts of sexual violence. Dr. Friedman discerned a pattern of harassing and obsessional behavior by appellant that preceded the 1986 rape and which he repeated after his release from prison with respect to J.P. The psychologist described appellant as a "simple obsessional follower[,]" clinically signifying that appellant "fixates upon and follows a prior intimate partner." He noted that persons with those traits tend to be more violent than others who engage in stalking.

Dr. Friedman also found significant appellant's failure to appreciate the wrongfulness of his behavior towards J.P. He further noted that appellant has repeatedly violated the terms of parole and probation, and had multiple institutional infractions during his periods of imprisonment. In sum, Dr. Friedman found that appellant poses a "high risk" to sexually reoffend unless he is confined to a secure facility.

The State also presented expert testimony from Dr. Pogos Voskanian, a psychiatrist. Dr. Voskanian agreed with Dr. Friedman that appellant poses a high risk of sexual reoffense. The psychiatrist diagnosed appellant with paraphilia, not otherwise specified ("NOS"), antisocial personality disorder, and alcohol dependence in a controlled environment. Dr. Voskanian underscored appellant's chronic stalking behavior, which, as to J.P., has persisted for eleven years. He also noted appellant's lack of empathy and remorse. The factors led Dr. Voskanian to conclude that appellant presents a "serious difficulty in controlling his sexual offending behavior[.]"

In opposition, appellant presented expert testimony from Timothy Foley, a psychologist who examined him in early January 2008. Dr. Foley did not diagnose appellant with a sexual pathology, although he conceded that appellant's conduct relating to J.P. "could probably [be] term[ed] as stalking behavior." He opined that stalking behavior is not a reliable risk predictor for sexual reoffense.

Dr. Foley diagnosed appellant with schizotypal personality disorder. He also acknowledged that appellant could be diagnosed with antisocial personality disorder, NOS, but did not believe that such a condition creates a propensity for sexual reoffense. He disagreed with the State's experts that appellant is highly likely to commit another sexual crime, noting that appellant's last proven sexual offense was two decades ago.

Weighing these proofs, Judge Perretti found by clear and convincing evidence that the State had established the elements for civil commitment under the SVPA. She perceived the State's experts to be credible. By contrast, the judge was less impressed with Dr. Foley's analysis. She found it difficult to accept Dr. Foley's ultimate conclusions concerning risk, in light of several concessions he made about appellant's obsessional behavior. The judge observed that appellant's more recent obsessional behavior towards J.P. echoed his prior obsession with K.A. in 1986. She found that appellant was "clearly driven by his diagnosed sexual deviance," and that his paraphilia was aggravated by his antisocial personality traits. In sum, the judge characterized appellant as a "highly dangerous individual whether to J.P. or to the community at large." Consequently, she continued his confinement at the STU.

On appeal, appellant argues that the trial court's findings were against the weight of the evidence and that the proofs do not satisfy the SVPA. We disagree, essentially for the cogent reasons expressed in Judge Perretti's oral opinion.

While it is true that appellant's only conviction for a sexual offense occurred in 1986, his post-parole behavior sufficiently relates to girlfriends and aberrant sexual motivations that can fairly be considered in evaluating appellant's propensity to sexually reoffend. See J.M.B., supra, 197 N.J. at 595-97 (broadly construing sexually violent conduct and its equivalents). We also reject appellant's claim that the judge violated N.J.R.E. 702 in considering hearsay information and assessments from the evaluations of non-testifying experts, presentence reports, and other written materials. The information was properly considered for background purposes, in the context of considering and understanding the opinions of the testifying experts. See In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 613 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

 
Affirmed.

(continued)

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A-2508-07T2

RECORD IMPOUNDED

October 29, 2009