OF NEW JERSEY DIVISION A-4375-09T2 IN THE MATTER OF THE CIVIL COMMITMENT OF K.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4375-09T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.H. SVP-441-06.

________________________________________________________________

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-441-06.

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

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

PER CURIAM

Appellant K.H., now fifty-six years of age, appeals from Judge Freedman's May 13, 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 first sexual offense for which appellant was convicted was an aggravated sexual assault. The victim, R.E., was appellant's half-sister. On October 2, 1984, appellant, then 30 years old, pled guilty to the offense.

Appellant admitted to having sexual intercourse with R.E., knowing her to be younger than thirteen years old at the time. There were multiple incidents of fellatio and intercourse over a period of approximately one-and-one-half years. On January 11, 1985, appellant was sentenced to ten years imprisonment to be served at the Adult Diagnostic Treatment Center (ADTC). Appellant refused treatment at the ADTC and was transferred to the general prison population. He was paroled in March 1988.

In 2000, appellant was charged with sexual assault, endangering the welfare of a child, and criminal sexual contact. On June 6, 2001, he pled guilty to an amended charge of attempted sexual assault. During the plea hearing, appellant admitted that he attempted to sexually penetrate M.R. on the second floor of his bagel shop. At the time of the assault, appellant was forty-five years old and M.R., one of his employees, was fourteen years old. Appellant was sentenced on September 28, 2001, to five years imprisonment with a five-year parole disqualifier. Appellant was evaluated at the ADTC and determined to be in need of sex offender treatment. He again refused treatment at the ADTC.

Appellant's convictions constituted sexually violent offenses as defined in N.J.S.A. 30:4-27.26. The Attorney General filed a petition on September 18, 2006, seeking to civilly commit appellant pursuant to the SVPA. The court ordered appellant's temporary commitment on September 25, 2006. Subsequently, a hearing took place and the court entered a judgment of commitment on January 18, 2007. We affirmed that decision. In re Civil Commitment of K.H., No. A-3469-06 (App. Div. October 6, 2008). On April 20, 2009, a consent order was entered continuing appellant's civil commitment, based on his stipulation that the State's proofs established by clear and convincing evidence that he continued to be a sexually violent predator in need of involuntary civil commitment.

The review hearing that is the basis of this appeal was held on May 5 and 11, 2010. Judge Freedman rendered his decision on May 13, 2010, and issued his order on the same day. At the hearing, the State presented the expert testimony of Dr. Alberto M. Goldwaser, a psychiatrist, and Dr. Shawn McCall, a psychologist. Appellant offered the testimony of Brian Nolan, an advocate representative with the Office of the Public Advocate, with regard to a discharge plan. Dr. Timothy Foley, a psychologist, also testified on behalf of appellant.

Dr. Goldwaser diagnosed appellant with paraphilia non-consent, hebephilia, cannabis dependence and personality disorder with anti-social and narcissistic features. He opined that appellant lacked necessary self-control and required further treatment because he still denied having a problem. He further opined that appellant's diagnosed conditions predisposed him to sexual violence and created a serious difficulty for him to control his sexually offending behavior.

On two occasions, Dr. Goldwaser scored appellant as a "3" on the Static-99 test, indicating appellant was in the medium-low category of risk to commit a new sexual offense. However, Dr. Goldwaser otherwise characterized appellant's risk to sexually reoffend as high, if he was not recommitted for continued treatment. In order to reduce that risk, Dr. Goldwaser noted that appellant needed to take responsibility for his behaviors and develop empathy for his victims. According to Dr. Goldwaser, appellant was not addressing the repetitive and compulsive aspect of his deviance; until he stopped denying his sexual deviance, he could not reduce his risk.

Dr. McCall was a member of the Treatment Progress Review Committee (TPRC) that most recently evaluated appellant. The TPRC recommended that appellant continue in phase three of treatment at the STU. Dr. McCall noted that appellant engaged in treatment through his attendance and participation, but expressed concerns about how invested he was in genuinely making real changes in his life. Also, once appellant could show he truly internalized the treatment concepts, the TPRC would consider advancement. According to Dr. McCall, appellant was unable to demonstrate the necessary transparency about his condition and understanding of his sexual history. Appellant also did not have a firm understanding about what a victim is, how he victimized others or the nature of his deviant arousal. He appeared to perceive no problem with his arousal to young girls.

Dr. McCall scored appellant a "2" on the Static-99 test, placing him in a low-moderate range for reoffending. He diagnosed appellant with paraphilia, hebephilia, personality disorder with anti-social features, alcohol abuse, cannabis dependence, and nicotine dependence.

Brian Nolan met with appellant and prepared a discharge plan for him. Nolan testified generally that appellant would have the support of his brother and another friend in the community, and the promise of employment at a pizzeria in Asbury Park. Also, appellant would have options available to him for continuing sex offender treatment, although the pizzeria is apparently about forty to fifty miles from the treatment center.

Dr. Foley testified that appellant was a willing participant in the course of treatment, but he sometimes struggled with a language barrier. He scored appellant at a "2" on the Static-99 test, which put him in the lower range for likelihood to recidivate as a sex offender. Dr. Foley diagnosed appellant with cannabis abuse and possibly dependence. He also found indications of "some difficult personality traits," but noted it was difficult to diagnose because appellant was an immigrant. According to Dr. Foley, appellant's attraction to post-pubescent teenage girls was not unusual in adult males, and Dr. Foley did not diagnose appellant with paraphilia or hebephilia. When asked by the court, Dr. Foley admitted that appellant's behavior was repetitive and compulsive, and there were indications of some dysfunctional personality traits.

Based on the Static-99 test, appellant's age, and the effect of treatment, Dr. Foley opined he was in the low risk range for reoffense. He recommended that appellant not work with or be in a position of power over adolescent females, that he continue with sex offender treatment and possibly narcotics anonymous. Based on his evaluation, Dr. Foley determined that appellant was highly likely to comply with the conditions placed on him if he were conditionally discharged from the STU.

Judge Freedman found appellant clearly has deviant sexual arousal that is consistent with paraphilia and that the treatment record "clearly support[ed] the conclusions reached by the [S]tate's experts." The judge stated:

I'm satisfied to find by clear and convincing evidence that [appellant] does, in fact, suffer from a mental abnormality in the form of paraphilia. And that he also suffers from a personality disorder with narcissistic and anti-social features. And that these that the that the paraphilia itself and the and, certainly, in combination with the personality disorder, without a doubt, predisposes him to engage in acts of sexual violence, as the record shows.

. . . .

So, I'm satisfied by clear and convincing evidence that these problems that he has affect him at least volitionally and probably emotionally, as well. That they that his record shows that he is predisposed they do predispose him to commit these acts, the two offenses plus his other admissions with regard to other female children under the age of 16 but who are post-pubescent. And I find by clear and convincing evidence that if he were released now, he would, in fact have serious difficulty controlling his sexually violent behavior.

And even though he is under Probation Supervision for Life, or Community Supervision for Life as it was called when he was sentenced, he . . . and that that supervision would not be sufficient to lower his risk below that of highly likely. I find he would be highly likely. . . . And I think that he meets the criteria that the state is required to prove by clear and convincing evidence.

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).

An involuntarily 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. 31, 58-59 (1996).

We are satisfied from our review of the record that Judge Freedman'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 Freedman in his thorough and well reasoned oral opinion of May 13, 2010.