IN THE MATTER OF THE CIVIL COMMITMENT OF D.H.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4272-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF D.H.S. SVP-262-02.

________________________________________________________________

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-262-02.

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

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant D.H.S., now forty years of age, appeals from Judge McLaughlin's April 9, 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 New Jersey 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. We disagree and affirm.

The petition for civil commitment described the following predicate offense: On October 18, 1987, appellant and an accomplice pushed N.C. into the elevator in the lobby of a building. Appellant pushed the buttons for the elevator to go up, and the accomplice held N.C. Appellant then disconnected the elevator light, and N.C. was told to "[g]ive it up." N.C. was punched in the stomach, forced to the floor, and her jeans, pantyhose and underwear were removed. Both men vaginally raped N.C. and one of the men forced his penis into her mouth. N.C. was struck with a beer bottle in the head several times, and she was robbed.

On August 7, 1989, appellant pled guilty to multiple offenses arising out of the incident, including two counts of aggravated sexual assault. The same day, he also pled guilty under a separate indictment to first degree robbery, second degree aggravated assault, and weapons offenses. On April 6, 1990, appellant was sentenced for the October 18, 1987 offenses to twenty years imprisonment with a ten-year period of parole ineligibility. On the same day, he was sentenced to a concurrent twenty-year term for the offenses in the separate indictment.

In addition to the predicate offense, appellant was also charged with sexually assaulting S.L. on May 21, 1989. The complaint charged him with aggravated sexual assault, armed robbery and criminal restraint. According to S.L., appellant and two other men approached her on the street. One of the men placed a gun to her neck and she was dragged to a vacant lot. One of the men forced her to fellate him and the man with the gun vaginally raped her. These charges were dismissed pursuant to the plea agreement when appellant pled guilty to the offenses we have previously described.

Appellant had a significant juvenile history that predated the predicate offense. In 1984, he was adjudicated delinquent of assault, robbery, burglary, joyriding, and receiving stolen property. In 1985, he was adjudicated delinquent of five separate burglaries. In 1986, he was adjudicated delinquent of attempted robbery.

In 2002, the State petitioned for appellant's involuntary civil commitment as a sexually violent predator. On August 13, 2002, an order was entered temporarily committing appellant to the STU, followed by a September 6, 2002 order of commitment, after an initial hearing, which we affirmed. In re Civil Commitment of D.H.S., No. A-907-02 (App. Div. July 16, 2004). Subsequent review hearings prior to the one now before us resulted in February 8, 2005 and September 24, 2007 orders of continued commitment, which we affirmed. In re Civil Commitment of D.H.S., No. 4337-04 (App. Div. October 25, 2005), certif. denied, 188 N.J. 491 (2006); In re Civil Commitment of D.H.S., No. A-0824-07 (App. Div. March 11, 2008).

The review hearing that is the subject of this appeal was conducted on March 16 and 25, 2010. Judge McLaughlin rendered an oral decision on April 5, 2010, and issued his order on April 9, 2010. At the hearing, the State presented the expert testimony of Dr. Marta Scott, a psychiatrist, and Dr. Jamie Canataro, a psychologist.

Dr. Canataro testified that in the past two years, appellant had changed his attitude and begun to actively engage in treatment, completing a number of modules. However, he had also been recommended to repeat other modules. She said he was cooperative and wanted to do what is necessary to advance in treatment. However, appellant continued to minimize the 1987 offense, and did not grasp the ability to apply relapse prevention skills to his situation.

Dr. Canataro noted that the Treatment Progress Review Committee (TPRC) recommended continued treatment, retaking of the relapse prevention 3 module, and joining the therapeutic community. Appellant scored an eight on the Static-99 test, which is designed to predict the likelihood of recidivism of sexual offenders. That placed appellant in the category of offenders who are a high risk to sexually reoffend in the reasonably foreseeable future. Dr. Canataro diagnosed appellant with paraphilia nonconsent, polysubstance dependence, and antisocial personality disorder.

Dr. Scott testified that appellant did not consider himself to be a sex offender, and he minimized his offenses. She noted that he was making progress, but still lacked an understanding of his sex offense cycle, and was unable to verbalize any high risk situations for himself. Dr. Scott evaluated appellant on the Static-99 test and scored him at a six, placing him in a category of sexual offenders who are a high risk to recidivate.

Dr. Scott diagnosed appellant with polysubstance dependence in institutional remission, and antisocial personality disorder. This diagnosis was based on his history of juvenile offenses, which is evidence of conduct disorder prior to the age of 15, his sexual offenses involving impulsivity and aggressiveness, his failure to maintain a consistent work history, his participation in the 1989 offense when he was out on bail for the 1987 offense, and the failure of probation supervision and parole supervision to deter him. Dr. Scott found that he had not demonstrated genuine remorse or empathy for his victims, and he continued to minimize the force used during the assaults.

Dr. Scott also noted that appellant's sexual pathology and personality structure was marked by impulsivity and opportunism. She opined that appellant's abnormality affects his cognitive, emotional and volitional capacity in a manner that results in serious difficulty in controlling his sexually dangerous behavior, predisposes him to commit future acts of sexual violence, and makes him a high risk to sexually reoffend.

Appellant presented the expert testimony of Dr. Timothy Foley, a psychologist. Dr. Foley testified that there was no evidence that appellant had a compulsive sexual offending pattern, and, in his opinion, appellant did not suffer from paraphilia. He diagnosed appellant with antisocial personality disorder and polysubstance abuse in institutional remission. Dr. Foley stated that appellant's sexual offense history was indicative of volitional deficits with intoxication. He noted that there were no recent indications of sexual dyscontrol and no indication of drug or alcohol abuse during his confinement. In Dr. Foley's opinion, with appropriate supervision, treatment, and court oversight, appellant did not present a highly likely threat to the health or safety of others through sexually violent behavior. He recommended a conditional discharge with frequent and random drug screens, as well as continued sex offender specific and substance abuse treatment. The defense presented a proposed discharge plan, by which appellant would be discharged to his parent's home.

Judge McLaughlin found that the State proved by clear and convincing evidence that appellant was convicted of a sexually violent offense and that he suffers from a mental abnormality or personality disorder. The judge noted that there was a divergence in opinion between the medical experts as to whether appellant has serious difficulty controlling harmful sexually violent behavior such that it is highly likely that he will reoffend in the reasonably foreseeable future. After outlining the difference in opinion, the judge credited the State's experts. He stated:

I find that the State has clearly and convincingly proven, with the testimony of Dr. Scott and Dr. Canatero [sic], that [appellant] currently has a serious difficulty controlling his harmful sexually violent behavior, such that it is highly likely that he will reoffend in the reasonably foreseeable future.

. . . .

Even though [appellant] has made great strides in the past two years, as compared to his prior investment in treatment, he still has not been able to fully grasp the ramifications of his own conduct. He has had difficulty understanding his own sex offender cycle, has failed the Relapse Prevention 3 module, and minimizes his own offenses to the point of showing a lack of awareness of his sex offender dynamics.

There is also his problem of substance abuse. He has recently taken the modules, and made strides in dealing with that problem, and there's no evidence, of course, that while he was incarcerated, or in the STU, that he abused substances.

And even Dr. Foley had knowledge that . . . if he went back to the substance abuse lifestyle, he would be highly likely to reoffend.

For the protection of the public, and I find the State has proven, by clear and convincing evidence, that without further treatment, [appellant] has not mitigated his risk through treatment, at this point, to reduce that risk to below highly likely to reoffend. He has made great strides, but he still needs to be able to apply principles to himself, to be able to verbalize high risk situations for himself, and how to deal with them, complete Relapse Prevention 3 to come up with a plan to prevent relapsing into harmful sexual activity, and that would be better done at the STU, than in the community.

Based on those findings, the judge ordered appellant's continued civil commitment.

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 committed person has the right to demonstrate at a commitment review hearing that he or she can be released on a conditional discharge with a reasonable likelihood of 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 "substantially reduce the likelihood 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. 58-59 (1996).

We are satisfied from our review of the record that Judge McLaughlin'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. Additionally, appellant's proposed discharge plan does not satisfy the requirements of JJF, so as to entitle him to a conditional discharge. We affirm substantially for the reasons stated by Judge McLaughlin in his thorough and well reasoned oral opinion of April 5, 2010.