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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5431-07T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF C.R.,

SVP-467-07.

________________________________________________________________

December 8, 2011

Submitted November 29, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 467-07.

Joseph E. Krakora, Public Defender, attorney for appellant C.R. (Michelle N. Cox, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

C.R. appeals from a June 20, 2008 judgment that ordered his involuntary commitment 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. We reject C.R.'s claim that the State's proofs fell short of establishing by clear and convincing evidence that he is highly likely to engage in acts of sexual violence if not involuntarily confined. We affirm.

I.

C.R. is a forty-seven year old man whose first sexually violent offense occurred in 1994 when he was twenty-nine years old. While alone in his mother's apartment with M.G., a seventeen-year-old girl whom he knew, C.R. told M.G. that he had not had sex with his wife for a week. He proceeded to ask M.G. if she could "solve his problem." When M.G. refused, and told him to leave the apartment, C.R. grabbed M.G.'s hand and forced her to touch his penis. M.G. ran from the apartment to a friend's apartment upstairs, and when the two returned, they found C.R. with a knife in his hand threatening to commit suicide.

The police transported C.R. to a crisis center, where he remained for twenty-four hours. When informed he was being released, C.R. stated that he was going home to "beat up" M.G. and "cut out her tongue" so she could not provide any further statements to the police. The police took him into custody, and charged him with third-degree terroristic threats and fourth-degree criminal sexual contact. On September 20, 1995, C.R. pled guilty to the latter offense, and was sentenced on November 3, 1995 to a three-year term of non-custodial probation.

On August 1, 1997, less than two years later, C.R. was found guilty of violating probation, but the judge permitted him to remain on probation, requiring him to attend outpatient drug counseling and a sex offender treatment program. Two months later, C.R. was again found guilty of a probation violation. This time, the judge terminated C.R.'s probation and sentenced him to an eighteen-month prison term.

On February 5, 1999, less than a year after his release from prison, C.R. committed his next violent sexual offense, this time attacking a thirteen-year old girl, R.P., in her own home while giving her a karate lesson. As soon as R.P.'s father left to go to work, C.R. began touching R.P.'s legs. When R.P. asked him to stop, C.R. continued to touch her, and threw her to the floor. He then removed her pants and vaginally raped her. C.R. threatened to "come back and kill [her]" if she told anyone that C.R. had raped her.

As a result of his attack on R.P., C.R. was charged with first-degree aggravated sexual assault and third-degree endangering the welfare of a child. On July 15, 1999, he pled guilty to aggravated sexual assault. In the pre-sentence report, C.R. admitted that he engaged in sexual intercourse with R.P., but asserted that the victim seduced him by climbing into her bed, spreading her legs and asking him to have sex with her. He admitted to being sexually aroused by young girls, and acknowledged being unable to control his arousal.

Prior to sentencing, C.R. was also evaluated by a psychologist, Kenneth L. McNeil, Ph.D. C.R. admitted to Dr. McNeil that he has liked young girls ever since he was fifteen years old, stating "I like young girls. . . . I need you to help me." He told Dr. McNeil that he prefers girls who are thirteen years old, admitting that he frequently fantasizes about them. Asked whether he had raped R.P., C.R. admitted that he did force the child to submit to sexual intercourse and that she had not seduced him, as he had claimed during the earlier interview for his pre-sentence report. C.R. expressed a desire to be sentenced to the Adult Diagnostic and Treatment Center (ADTC) at Avenel. As a result of that evaluation, Dr. McNeil found that C.R. was a compulsive and repetitive sex offender, and recommended that C.R. be sentenced to the ADTC for specialized sex offender treatment.

At the time of sentencing on February 4, 2000, the judge sentenced C.R. to a ten-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. The judge ordered that the sentence be served at the ADTC.

Shortly before C.R. was due to be released from that facility, the State filed a petition to civilly commit C.R. under the SVPA, alleging that he was a sexually violent predator and required treatment at the STU. A judge issued an order of temporary commitment on July 27, 2007. Although the commitment hearing was originally scheduled for November 2007, it was postponed several times to enable C.R. to retain an expert. The initial commitment hearing was ultimately held on June 20, 2008. It is the order entered at that hearing that is the subject of this appeal.

At the hearing, the State presented the testimony Brian Friedman, Psy. D., and Dean De Crisce, M.D. As a result of his clinical interview of C.R. on November 2, 2007 and his review of C.R.'s treatment records and criminal convictions, Dr. Friedman diagnosed C.R. as suffering from paraphilia NOS and non-consent, hebophilia with some sadistic traits, antisocial personality disorder and mild mental retardation. Dr. Friedman explained that C.R. continues to experience "recurrent and intense fantasies, urges, or behaviors involving sexual arousal to non-consensual sex" with child victims. He opined that C.R. is a compulsive and violent sexual offender whose deviant arousal patterns had not been controlled or even reduced through treatment. Dr. Friedman found it significant that C.R. had sexually offended against two adolescent victims in a period of four years.

When asked to explain why he had diagnosed C.R. with antisocial personality disorder with borderline traits, Dr. Friedman responded by explaining that C.R. had demonstrated a "pattern of disregarding the rights of others, being overly focused on meeting his own needs" and was unable to maintain stable interpersonal relationships or a positive self-image. Dr. Friedman commented that C.R.'s "adult history" involved considerable criminal activity in which C.R. had "behaved impulsively" and had "been physically aggressive."

Dr. Friedman opined that C.R. suffers from a pronounced compulsive deviant arousal pattern that had not abated despite two periods of incarceration and years of treatment. He testified that C.R.'s attraction to young girls "still remains an active issue," because it is a "pervasive personality trait[]" that would not "just kind of turn off over time."

When asked whether C.R.'s intellectual deficits had an impact on C.R.'s likelihood of re-offending, Dr. Friedman answered in the negative, stating "there's no association between intellectual ability and propensity to commit sexual offending." However, he observed that C.R.'s "intellectual limitations" would make "treatment slower for him" and would make it "much harder for him to learn some of the . . . interventions that he could utilize" to reduce the risk of re-offending.

Dr. Friedman also explained that C.R.'s history of two violations of probation created an increased risk for future sexual re-offending, commenting that the two violations "suggest[] a poor response to supervision." He observed that "failure under any form of supervision is a risk factor for future sexual offending."

Dr. Friedman opined that C.R. presents a "high risk" of "sexually offend[ing] in the foreseeable future unless confined to a facility for treatment." He based that opinion on C.R.'s self-admitted "arousal to rape" and his "acknowledged arousal" to thoughts of "raping and killing people." Dr. Friedman also expressed concern because C.R.'s "pathology" was "ingrained," as C.R. had spent many years at the ADTC but had not achieved a significant "treatment effect." Dr. Friedman described C.R.'s treatment gains as "relatively minimal." He also explained that C.R.'s discharge plan -- living with his mother -- was unrealistic, as C.R. had been living with his mother when he attacked M.G.

Dr. De Crisce testified next, agreeing with the diagnoses that Dr. Friedman had assigned to C.R. Dr. De Crisce pointed to four factors that he believed demonstrated C.R.'s high likelihood of re-offending if released to the community. First was C.R.'s tendency to minimize his sexually violent behavior and its impact on his victims. Notably, C.R. described his first victim, M.G., as a "slut" who was "having sex right and left." Dr. De Crisce observed that C.R. believed that he was entitled to have sex with M.G. because "she was already engaged in sexual activity with other people, so it would be no big deal to engage [in] it with him." Dr. De Crisce opined that this sort of thinking was indicative of C.R.'s poor judgment and his pathological view that women are obliged to satisfy his sexual needs, regardless of their lack of desire to do so.

Second, Dr. De Crisce expressed concern about C.R.'s admission that he continues to struggle with deviant fantasies of rape and violence. Dr. De Crisce described a report he received from STU staff that C.R. had recently stated in a group therapy session his fear of re-offending sexually when he is released, and his fear that he might kill his next victim if the opportunity arose. Because C.R.'s violent arousal patterns had continued over a period of years despite lengthy periods of treatment, Dr. De Crisce opined that C.R. continued to present a substantial risk of re-offending if released to the community.

Third, while C.R.'s two victims were not strangers to C.R., his compulsion to sexually attack them was so strong that he was unable to refrain from assaulting them, even though he must have realized they would be able to identify him. Fourth, C.R.'s history of substance abuse created an increased risk that he would sexually re-offend.

Dr. De Crisce was asked to comment on C.R.'s score of 2 on the Static-99 test, which placed C.R. in the low-risk category of sexually reoffending. Dr. De Crisce opined that the score of 2 "underestimates [C.R.'s] risk" because the test instrument only took account of C.R.'s prior conviction and his having preyed upon "unrelated victims." Dr. De Crisce observed that the Static-99 failed to account for three other risk factors that play a substantial role in C.R.'s likelihood of re-offending: 1) he forcibly raped R.P. despite having been imprisoned for his attack on M.G., and despite having already received sex offender treatment; 2) C.R. has a history of untreated substance abuse "with relapsing . . . after he had been already treated"; and 3) C.R.'s "antisocial personality disorder" desensitizes him to the impact of his crimes on his victims. Dr. De Crisce opined that these factors "combine to create a highly likely risk."

When the State rested, C.R. presented the testimony of Jeffrey Singer, M.D., who had interviewed C.R. on February 26, 2008 and again on June 17, 2008. Unlike Drs. Friedman and De Crisce, Dr. Singer did not diagnose C.R. with paraphilia, explaining that he found no compelling psychological or behavioral data to suggest that C.R. is driven by deviant fantasies. He opined that C.R.'s offenses against M.G. and R.P. were "impulsive, hedonistic situationally driven" offenses that were not prompted by "a deviant pattern of sexual arousal." He stated that although rape is a "sadistic act," C.R. was not motivated by inflicting "pain for its own sake," but rather by an urge to "get off." He opined that C.R.'s rape of thirteen-year old R.P. was "a pedestrian [ordinary] rape" with no indication that C.R. had used "force for its own sake. There's no trophy taking. There was no . . . elongated period of suffering."

Ultimately, Dr. Singer opined that C.R. had already attained the maximum benefit from treatment and that he could be released to the community under supervision without posing an unreasonably high risk of re-offending.

Judge Freedman rendered an oral decision on June 20, 2008.

The judge credited the testimony of the State's two experts, Friedman and De Crisce, finding their testimony to be undisputed and their conclusions clear and convincing. In contrast, the judge found Dr. Singer's testimony "unconvinc[ing]," largely because Dr. Singer had ignored clear evidence that C.R. suffers from paraphilia. The judge stated, "I don't think there's any question he's got a paraphilia."

The judge's forty-six page oral opinion began with a comprehensive summary of the numerous exhibits and records presented by the parties, and a detailed review of the conduct that led to C.R.'s criminal convictions in 1995 and 2000. The judge found that C.R.'s inability to control his persistent arousal to violent rape made it "highly likely" that C.R. would have serious difficulty controlling his sexually violent behavior were he to be released. Judge Freedman concluded that the State satisfied its burden of establishing C.R.'s eligibility for continued involuntary confinement under the SVPA, and scheduled June 8, 2009 for the next hearing.

On appeal, C.R. argues: 1) the State failed to prove by clear and convincing evidence that he would be highly likely to commit future acts of sexual violence; and 2) the judge erred by accepting the opinions offered by the State's experts, as neither one "adequately credited [C.R.] for his progress in treatment given [his] severe cognitive limitations."

II.

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. 2003). We accord the "utmost deference" to the trial judge's "determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless it reveals a clear mistake in the exercise of the trial judge's broad discretion. V.A., supra, 357 N.J. Super. at 63.

New Jersey's SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). As the Court recently observed in In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009), "[t]he Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators."

In commitment proceedings initiated pursuant to the SVPA, the State must demonstrate that the individual "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. The State must prove the individual poses a "threat to the health and safety of others" because of his or her likelihood of engaging in sexually violent acts due to a "serious difficulty in controlling his or her harmful behavior such that it is highly likely" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).

"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.'" Ibid. (alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)). The trial court must address "present serious difficulty with control," and the State must establish its case by clear and convincing evidence. W.Z., supra, 173 N.J. at 132-33 (emphasis in original).

Having carefully reviewed the record in light of C.R.'s arguments on appeal, we are satisfied that the order of June 20, 2008 should be affirmed. Judge Freedman properly evaluated the evidence before him, and his findings fully comply with the requirements of J.M.B., supra. The record amply supports the judge's conclusion that: C.R. suffers from a pattern of deviant arousal marked by attraction to pubescent girls; C.R.'s persistent sexual fantasies of violently raping young girls make it highly likely he would re-offend; his attack on R.P., which occurred only four years after his assault on M.G., despite an intervening conviction, followed by incarceration and treatment, demonstrate the severity of his psychopathology and resistance to treatment; and his history of twice violating probation demonstrates an inability or an unwillingness to conform to supervision and court orders.

Moreover, we are unpersuaded by C.R.'s claim that the judge erred by crediting the opinions expressed by the State's experts. As we have observed, we owe the "utmost deference" to the trial judge's evaluation of the record and his or her findings of fact. Field, supra, 77 N.J. at 311. Regardless of the cause of C.R.'s inadequate treatment progress, the fact remains that despite more than a decade of treatment, C.R. has gained virtually no insight into his deviant arousal pattern and lacks the capacity to control it.

The record supports Judge Freedman's conclusion that the State's proofs satisfied its heavy burden of establishing by clear and convincing evidence that C.R. qualifies as a sexually violent predator who should be involuntarily confined to STU.