IN RE THE CIVIL COMMITMENT OF N.M.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3882-09T2

IN RE THE CIVIL COMMITMENT

OF N.M.W. SVP-279-02.

________________________________________________________________

December 17, 2010

Argued December 13, 2010 Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-279-02.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

N.M.W., now twenty-eight years of age, appeals from Judge Mulvihill's March 26, 2010 order determining that he met the criteria for civil commitment as a sexually violent predator and recommitting him to the Special Treatment Unit (STU), a secure custodial facility designed for the treatment of persons in need of involuntary civil commitment, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the State failed to prove by clear and convincing evidence that he is highly likely to reoffend if not confined to the STU. He argues that he should be released from SVP commitment or granted conditional release due to his progress in treatment. Having carefully reviewed the record and considered the arguments of counsel, we affirm.

Appellant's predicate offense was a violent double rape that occurred on December 22, 1997. Appellant, then fifteen years old, approached a thirty-four-year-old woman and led her at gunpoint into a stairwell where he raped and beat her. Later, appellant approached a thirty-six-year-old woman and, at gunpoint, forced her behind a building where he robbed and raped her. Appellant pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and was sentenced to a five-year prison term with a fifty-one month parole disqualifier.

On October 11, 2002, prior to his scheduled release, the State filed a petition for appellant's commitment under the SVPA. After a hearing on November 19 and December 18, 2002, appellant was found eligible for SVPA commitment and a judgment was entered. We affirmed. In re Civil Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004), certif. denied, 182 N.J. 429 (2005).

A first review hearing was conducted on April 20, April 27, and May 3, 2006, and appellant's commitment was continued by order of May 17, 2006. We affirmed. In re Civil Commitment of N.W., No. A-4937-05 (App. Div. January 22 2007). After a second review, appellant's commitment was again continued by order of April 26, 2007. We affirmed. In re Civil Commitment of N.M.W., No. A-4610-06T2 (App. Div. November 15, 2007), certif. denied, 195 N.J. 418 (2008). After a third review, an order of on April 16, 2008 was entered continuing appellant's commitment, and we again affirmed. In re Civil Commitment of N.M.W., No. A-4434-07 (App. Div. November 18, 2008). After a fourth review, an order of April 1, 2009 was entered continuing appellant's commitment, which we affirmed. In re Civil Commitment of N.M.W., No. A-4405-08 (App. Div. January 8, 2010).

The hearing from which appellant now appeals occurred on March 26, 2010. The State presented two witnesses, Dr. Rosemarie V. Stewart and Dr. Pogos H. Voskanian. Appellant presented no witnesses, and he did not present a proposed conditional discharge plan.

Dr. Stewart, a psychologist and member of the Treatment Progress Review Committee (TPRC), testified that she prepared a report for the Committee dated February 24, 2010 in which she outlined its finding that appellant should remain in Phase II of treatment in the STU. In preparing the report, Dr. Stewart reviewed numerous records and documents, interviewed appellant, and made her own, independent diagnoses. Factually, Dr. Stewart noted that appellant had been placed on Modified Activities Program (MAP) status for a large portion of the time that he had been in the STU. Accordingly, appellant had not regularly attended process groups or completed treatment modules. He scored an eight on the Static 99-R test, which indicates a high risk of reoffense.

She noted that appellant had shown some signs of progress. He was willing to engage in education and self-help groups, but was not necessarily eligible for them. He appeared committed to avoiding MAP status, and had taken less time to come off MAP when he had been placed there. He also reduced the frequency of his masturbation from seven times per day to twice per day, four times per week. However, he still denied the majority of his offenses, and had not completed any of the written requirements of his treatment.

Dr. Stewart diagnosed appellant as having paraphilia not otherwise specified (NOS), non-consent; exhibitionism; cannabis and alcohol abuse; and an anti-social personality disorder. In light of these diagnoses, and appellant's continued MAP placement, the TPRC recommended appellant's continued commitment in Phase II of treatment.

Dr. Voskanian, a psychiatrist, produced a report after twice interviewing appellant and consulting numerous records and reports related to appellant's history and treatment. He made his own diagnoses of appellant. He characterized appellant's behavior and personality during his second interview as volatile. Appellant ended the interview early when Dr. Voskanian pressed him related to appellant's exposure to and masturbation in front of female staff members. Appellant was very careful about what he would and would not discuss. He denied the facts of the predicate offense, and offered conflicting accounts of the violence involved in the crimes.

Generally, Dr. Voskanian's testimony was similar to Dr. Stewart's regarding appellant's treatment history, and the progress that he had made. He also recognized the same challenges as identified by Dr. Stewart: appellant's limited treatment participation due to his extended MAP status and his denial of his crimes. Dr. Voskanian diagnosed appellant with paraphilia NOS, exhibitionism, marijuana dependence, rule-out polysubstance dependence, and anti-social personality disorder. Ultimately, Dr. Voskanian was of the opinion that appellant met the criteria for commitment under the SVPA and was in only the initial stages of treatment.

Appellant's attorney argued that appellant had made significant progress in his treatment as evidenced by his decreased masturbation, decreased frequency and severity of MAP placement, and increased willingness to engage in the treatment process. Further, appellant had been confined since he was fifteen years of age. Accordingly, he argued that appellant should be released from the STU on either a conditional or permanent basis.

Judge Mulvihill did not agree with appellant's argument, and consistent with the State's experts, found that appellant should remain confined for treatment at the STU. Specifically, the judge stated:

I find the state has proven by clear and convincing evidence . . . that [appellant] has been convicted of a sexually violent offense, predicate offense, as per the statute; number two, he suffers from a mental abnormality or personality disorder that predisposes him to sexual violence; and number three, clear and convincing evidence at this particular time he's a high risk to sexually re-offend, that he has the diagnosis of paraphilia, anti-social personality disorder, exhibitionism. . . . that he's only 28-years-old, still very healthy, powerfully-built young man, this predisposes him to sexual violence. He's had big problems up until the last year in terms of exposing his genetalia to women, masturbating in public areas.

And it's highly likely, it's by clear and convincing evidence . . . that if he's not confined to this institution, he will sexually re-offend and put innocent people at risk.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, 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.

As defined by 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." Ibid. 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.

At the commitment hearing, the State must prove a 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

A person committed under the SVPA has the right to demonstrate at a review hearing that his or her conditional discharge does not present an unreasonable risk to community safety. In re Commitment of JJF, 365 N.J. Super.486, 500 (App. Div.), certif. denied, 179 N.J.373 (2004). "When the evidence suggests a potential for defeating this third prong under appropriate conditional release terms" the judge "has the authority and the responsibility to consider the conditions, and factor that evidence into a determination of whether the third prong is met." Id.at 501. The individual is entitled to a conditional discharge where the conditions for release "substantially reduce the likelihood [of reoffense] to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence." Id.at 502.

The scope of appellate review of judgments of civil commitment 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). An appellate court should give the "utmost deference" to the reviewing judge's determination. In re Commitment of J.P., 339 N.J. Super. 443, 359 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "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).

We are satisfied from our review of the record that Judge Mulvihill's finding that appellant continues to be highly likely to reoffend and otherwise meets all criteria for continued SVPA commitment is well supported by the record, and we defer to that finding. Further, because appellant failed to submit a plan for conditional discharge, he provided no basis for such a release. See JJF, supra, 365 N.J. Super. at 500. We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of March 26, 2010.

A