IN THE MATTER OF THE CIVIL COMMITMENT OF D.M.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4406-08T24406-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.M.B., SVP-337-03.

___________________________________

 

Argued September 23, 2009 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-337-03.

Mary T. Foy, Assistant Deputy Public Advocate, argued the cause for appellant D.M.B. (Ronald K. Chen, Public Advocate, attorney).

Cindi Seider Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

D.M.B. 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 New Jersey Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. He appeals from an order of November 3, 2008 that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. After reviewing the record and applicable law, we affirm substantially for the reasons outlined in Judge Serena Perretti's comprehensive oral opinion of November 3, 2008.

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) (quoting 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.

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 re-offend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004) (citing N.J.S.A. 30:4-27.32(a)); 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. 2004), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002). "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." Id. at 455; see also W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32.

Our review of a commitment pursuant to the SVPA is extremely narrow. 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)). 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 in accordance with the requirements of Rule 2:11-3(e)(1)(A). We add the following comments.

On September 24, 2003, the State filed a petition for the involuntary civil commitment of D.M.B. pursuant to the SPVA. At that time, the State also sought his temporary commitment to the STU. The predicate offenses for which the temporary commitment order was sought stemmed from his June 23, 1995 guilty plea to first-degree sexual assault, N.J.S.A. 2C:14-2(a)(3), and first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1. He was sentenced to 15 years on each count, to run concurrently.

On October 1, 2003, the court entered an order temporarily committing D.M.B. to the STU and, on March 8, 2004, following a hearing, the court entered judgment declaring that D.M.B. was a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment. On appeal, we affirmed the court's decision in an unpublished opinion. In re the Civil Commitment of D.M.B., No. A-3896-03T2 (App. Div. February 15, 2006). An order continuing his commitment was entered on November 3, 2008.

The hearing that preceded entry of the November 3, 2008 order under appeal was held on September 17, 2008, October 29, 2008 and November 3, 2008. Dr. Nicole Paolillo, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified for the State. The parties stipulated to both doctors' qualifications and, subject to hearsay objections, the reports of both doctors were admitted into evidence without further objections.

Dr. Paolillo testified that she is a member of the Treatment Progress Review Committee (TPRC) panel within the STU and that the TPRC met with D.M.B. to evaluate his progress on May 12, 2008 and issued a report dated July 11, 2008. She testified that the TPRC believed D.M.B. should remain in Phase Two, which is considered the introductory phase of treatment. The TPRC unanimously voted to continue his treatment in Phase Two.

Dr. Paolillo diagnosed D.M.B. as having paraphilia, not otherwise specified (NOS), and polysubstance dependence under Axis I. Dr. Paolillo also, under Axis II, diagnosed D.M.B. as having an antisocial personality disorder. The July 11, 2008 TPRC report recommends that D.M.B. increase the quality and quantity of his taking of the floor in treatment, continue to attend group meetings regularly, complete the written programmatic requirements, and present his work in group in order to progress and advance into Phase Three. In addition, Dr. Paolillo explained that D.M.B. is "not acknowledging any evidence of a deviant arousal" and is entirely denying that he is a sex offender. Because of these large areas of denial, Dr. Paolillo believes D.M.B. cannot be "meaningfully engaged" in the treatment program.

Dr. Voskanian testified that, when attempting to interview D.M.B. for his May 6, 2008 report, D.M.B. "came up to the door, opened the door, and very angrily said, I had problems with you before and walked away." Dr. Voskanian indicated that the lack of an interview did not hinder his ability to reach an opinion because there were twenty-three sources of information he reviewed and he "had the opportunity to interview [D.M.B.] on two previous occasions." Dr. Voskanian testified that the twenty-three sources of information are the types of information he considers in gaining insight into the committee but that he always formulates his own independent diagnosis.

Dr. Voskanian diagnosed D.M.B. as suffering, under Axis I, from paraphilia, NOS. Under Axis II, he also diagnosed D.M.B. as having a personality disorder, NOS, with antisocial and paranoid traits. Dr. Voskanian testified that D.M.B. is defensive, difficult and static in his treatment. Dr. Voskanian explained that, after revising his report on September 9, 2008, D.M.B. remained static and that "[D.M.B.]'s fighting it. He's fighting everything. He did not attend certain groups that he was recommended to attend."

Dr. Voskanian also testified that paraphilia and a personality disorder work in combination to magnify the risk for one to sexually re-offend. He also explained the risk becomes even greater when one has an alcohol dependency because "it's going to impair his judgment and disinhibit, so you are going to have someone with impaired judgment and no control over his behavior." In Dr. Voskanian's opinion, D.M.B. has not had enough treatment to learn how to control his sexually offending behavior and remains at a high level of risk to sexually re-offend if not recommitted.

At the conclusion of the hearing, Judge Perretti found that the State had proved by clear and convincing evidence that D.M.B. continues to be a sexually violent predator who has a high risk of re-offending. The court specifically found:

[D.M.B.] has not completed any psychoeducational modules. He was assigned to anger management in 2005 but failed to attend. He also failed to attend the family of origin module in 2006.

He attends his process group, however the treatment providers report indicates that he is, quote, "not very productive in group." They say, quote, "While in process group, he often focuses on insisting that he is wrongfully committed to the facility, and attempts to dissect the elements of his legal case that justify his contention. When he does take the floor, it seems that he becomes focused on victim of the system issues."

. . . .

[Dr. Paolillo] testified that without recognizing that he is a sex offender, [D.M.B.] is unable to address the core issues and cannot proceed onto phase three of treatment.

. . . .

Dr. Voskanian had reviewed the treatment notes and observed that, over the course of years, they portrayed a static condition. He noted the same thing over and over, with the respondent presenting himself as defensive and difficult.

In the psychiatrist's opinion, phase two of treatment is higher than the respondent should be in, considering his approach to treatment and his attitude.

. . . .

It is the opinion of this psychiatrist that [D.M.B.] is predisposed to commit sexually violent acts, by reason of the conditions that he does diagnose. These conditions to [sic] not spontaneously remit. The paraphilia and the personality disorder combine to magnify the risk that [D.M.B.] will re-offend, based upon his paraphilic urges. His alcohol dependence further impairs his judgment and disinhibits his behavior.

. . . .

[D.M.B.] has had insufficient treatment to increase his ability to control himself. It was concluded that he has serious difficulty controlling his sexual behavior, and his risk is at a high level.

. . . .

The testimony offered by the State on the issue of [D.M.B.'s] continued eligibility for commitment is clear and convincing and uncontradicted. [D.M.B.] has been adjudicated a sexually violent predator. And in the course of his years in commitment, has not participated to any significant degree in sex offender specific therapy.

It appears to this Court that [D.M.B.] is a treatment refuser. He clearly suffers from uncontradicted, abnormal mental conditions and personality disorder that influence his cognitive, emotional and volitional functioning, so as to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior, as he so clearly demonstrated in the community.

This Court questions his general ability to control himself, based upon his attitude toward therapy, clearly -- described by him as memorialized within petitioner's [E]xhibit 5.

It is clear that [D.M.B.] is highly likely to commit additional sexually violent offenses within the foreseeable future, if not continued in commitment for further treatment. If he continues to refuse treatment, he must be continued in commitment for the protection of the public.

Contrary to D.M.B.'s arguments advanced during oral argument, neither the State's expert's opinion nor the trial court focused upon D.M.B.'s placement in MAP or his failure to discuss cases that were no-billed by the grand jury. Rather, of significance to the State's expert and the court was D.M.B.'s continued belief that he has no deviant arousal.

We are satisfied that the evidence supports the finding that D.M.B. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. N.J.S.A. 30:4-27.34(b). The conclusion that he 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 re-offend is supported by clear and convincing evidence, as required by W.Z., supra, 173 N.J. at 131-32.

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. 30:4-27.36(a).

The November 3, 2008 order was the product of the first annual review hearing for D.M.B. since his initial commitment in 2003. The respondent had waived hearing pending the outcome of the February 15, 2006 appeal and also his appeal to the New Jersey Supreme Court, for which certification was denied. Since that time the respondent has continually requested adjournments for purposes of preparation.

Modified Activities Plan.

(continued)

(continued)

10

A-4406-08T2

RECORD IMPOUNDED

October 13, 2009