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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4683-08T24683-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

R.R.R., SVP-373-04.

________________________________________________________________

 

Argued September 23, 2009 - Decided

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-373-04.

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

Cindi Collins, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney).

PER CURIAM

R.R.R. was committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, in January 2006. This court affirmed that order in an unpublished opinion, In re the Commitment of R.R.R., No. A-2663-05 (App. Div. October 2, 2007), and certification was denied by the Supreme Court, 193 N.J. 586 (2008). Following his first review hearing pursuant to N.J.S.A. 30:4-27.35, appellant was adjudged to be a sexually violent predator in continued need of involuntary civil commitment. He appeals from that order. We affirm.

The pertinent facts regarding appellant's criminal convictions are set forth in detail in our prior opinion and need not be repeated here at length. Appellant was convicted in 1986 of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1; and three counts of first-degree aggravated assault, N.J.S.A. 2C:14-2a(3). He was sentenced to twenty years imprisonment for the kidnapping conviction and concurrent terms for the other offenses and released on parole in 1993. He was arrested in 1996 while a parole absconder on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2; and second-degree kidnapping, N.J.S.A. 2C:13-1. He pled guilty to the kidnapping charge and was sentenced to seven years imprisonment to run concurrent to his parole violation. Each of the convictions from 1986 and 1996 arose from an allegation by a victim who was a stranger to R.R.R., taken from a public street, and threatened with violence before being sexually assaulted. In the 1986 offense, appellant acted with two co-defendants in the abduction and group rape. In the 1996 offense, he acted alone. Although he pled guilty to the 1996 charge, appellant has given divergent descriptions of his contact with the victim in the 1996 conviction which have included a claim that he had consensual sex with her.

At the review hearing, the State produced the testimony of Carlos Voskanian, M.D., a psychiatrist who had evaluated appellant prior to the hearing. Dr. Voskanian reviewed previous reports for R.R.R.'s presentations of his offenses, his sexual pathology and denial of sexual pathology, and the consistency of his statements. While he considered the reasons given for diagnoses included in the reports reviewed, he testified that he ultimately formed his own opinion.

Dr. Voskanian testified that the circumstances of appellant's two offenses indicated the presence of a persistent pathology. The facts that appellant was on parole and acted alone in the second offense were significant to Dr. Voskanian as reflecting appellant's disregard for the law, his urge to commit the offense and his daring in committing it without the support of a co-defendant. He saw no significant findings in terms of a psychiatric condition but testified that appellant dissociates the physical act of rape from his mental state of committing the rape. Dr. Voskanian stated that appellant's various versions of the second offense, ranging from outright denial to gross minimization, showed that "[h]e is not concerned about treatment or understanding himself or dealing with his issues, but he's strictly interested in presenting his case in a legally correct manner." In effect, appellant denied having any sexual pathology.

Dr. Voskanian noted that appellant was defiant toward treatment and had only started to come to treatment in the last few months before the hearing. The treatment notes assessed appellant very poorly for his progress. Appellant acknowledged to Dr. Voskanian that he had not made much progress and that, therefore, he believed it was appropriate for him to be in Phase 2 of treatment.

Dr. Voskanian diagnosed appellant as having paraphilia NOS and personality disorder NOS with antisocial features. Dr. Voskanian explained his reasons for a diagnosis of paraphilia NOS:

We have a history of two rapes, we have a second rape which was done after serving time and being under supervision, which points to strong urge to commit the second offense. Therefore, I'm more inclined today to make that diagnosis.

Dr. Voskanian also considered appellant's personality disorder to be a big contributor to his sexual offenses. Characteristics of the disorder that he attributed to appellant included lack of empathy, lack of remorse, and continuous violations of rules and regulations. Dr. Voskanian explained that the "predatory part" of this disorder, "not caring for somebody else and if opportunity presents to take advantage of somebody else financially or sexually or by any other means," related to appellant's sexual offenses. He also stated that the interaction between paraphilia and antisocial personality traits increased the risk that appellant would sexually offend in the future unless confined. Dr. Voskanian concluded that these conditions qualified appellant "as having a mental abnormality and a personality disorder that place him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

The TPRC reported that the committee unanimously recommended that appellant remain in Phase 2 of treatment and that the recommendation was consistent with that of the appellant's treatment team. Appellant was administered the Static-99, an actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males who have been convicted of at least one sexual offense. His score placed him in the high risk category.

In this appeal, appellant challenges the sufficiency of the evidence presented, arguing that the State failed to prove, by clear and convincing evidence, the elements necessary to continue his commitment pursuant to the SVPA: that he is "highly likely" to reoffend if not confined at the STU; and that he suffers from a mental or emotional condition which may cause him to reoffend sexually. Appellant also argues that Dr. Voskanian relied unduly on the TPRC report and that his failure to independently review certain treatment notes renders his report defective as inappropriately based on hearsay. We find no merit in these arguments.

As a preliminary matter, appellant's argument regarding the use of hearsay in the hearing lacks merit in light of the stipulations by his counsel at the hearing. Counsel for appellant had no objection to the State's exhibits, subject to a proviso that included hearsay would not be used to prove the facts contained therein and the treatment notes would not be used as proof of any complex diagnosis. Counsel also stipulated to the admission of the Treatment Progress Review Committee (TPRC) report, waiving the right to cross-examine the author of the report. Counsel did not object at the hearing to any of the testimony presented as violating any of these conditions.

Once a person has been initially committed, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. Both an order of commitment and an order of continued commitment 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 W.Z., 173 N.J. 109, 132-33 (2002); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32. The State retains the burden of proof and must demonstrate by clear and convincing evidence that the individual needs continued involuntary commitment as a sexually violent predator. N.J.S.A. 30:4-27.32(a). "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." In re Commitment of W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-57 (App. Div. 2002).

The scope of appellate review of a trial court's decision in a commitment proceeding is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., supra, 339 N.J. Super. at 459 (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of V.A., supra, 357 N.J. Super. at 63. "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). "Put succinctly, '[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 571 (2009) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

It is undisputed that appellant was convicted of a sexually violent offense. Therefore, to sustain its burden under the SVPA here, the State was required to present clear and convincing evidence that appellant "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. "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." Ibid. To prove the threat of recidivism, the State must "demonstrat[e] 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., supra, 173 N.J. at 132; see also In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).

The trial court carefully reviewed the record. While acknowledging that the appellant may be starting to engage in treatment, the court observed that he was "just at the very beginning stages of treatment and he has a very long way to go at this point." The court concluded that the State had proven by clear and convincing evidence that the appellant suffers from a mental abnormality in the form of paraphilia accompanied by a personality disorder that individually and in combination "clearly predispose him [to] engage in acts of sexual violence." The court also found that appellant continues to have a high propensity to commit such offenses. These conclusions, which satisfy the State's burden under the SVPA, are amply supported by the testimony provided by Dr. Voskanian.

 
Affirmed.

By agreement of the parties and permission of the court, the appeal was argued without briefs. We summarize the arguments raised by appellant based upon the presentation at oral argument.

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10

A-4683-08T2

RECORD IMPOUNDED

October 15, 2009