IN THE MATTER OF THE CIVIL COMMITMENT OF J.K.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3786-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

J.K.C., SVP-547-09.

_______________________

October 22, 2012

Submitted: October 3, 2012 - Decided:

Before Judges Axelrad and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-547-09.

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

Jeffrey S. Chiesa, 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

J.K.C. appeals from the March 22, 2010 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Appellant is a fifty-three-year-old convicted sexual molester of adult women. He has a longstanding history of sexual offenses. In or around 1972, when he was approximately fourteen years old, he engaged in sexual play with a five-year-old girl while residing at the Union County Shelter, which resulted in an eight-month placement at the Menlo Park Diagnostic Center. Following his release, appellant was placed in the McArthur Military Academy but was discharged following a reported sexual assault against another male student. On or about August 29, 1973, for approximately five weeks, appellant was a patient at the Carrier Clinic in Belle Mead, New Jersey, for an assault on his aunt.

On or about May 29, 1977, appellant, then eighteen years old, sexually assaulted an adult female, a neighbor, in her home, armed with a knife. He was seen running from the victim's home and was later identified as the perpetrator. The victim was found lying in her front corridor in a large pool of blood caused by a throat laceration, with her blouse pulled up over her breasts. When apprehended, appellant was found in possession of a knife and had scratches on his chest, back, and left side. On June 16, 1978, appellant was convicted in Sussex County of assault with intent to rape, N.J.S.A. 2A:90-2, assault with intent to kill, N.J.S.A. 2A:90-2, and entering without breaking with intent to rape (merged with the assault with intent to rape charge for sentencing purposes). He was sentenced to a twelve-year custodial term. Appellant was paroled on June 20, 1983, and released to Florida for his parole term. This was appellant's predicate sexually violent offense for civil commitment under the SVPA. See N.J.S.A. 30:4-27.26.

On or about February 21, 1984, in Palm Beach, Florida, approximately eight months after his parole from prison for the prior sexual offense, appellant presented himself at an adult female's home on the pretext of looking for work. After gaining entry and some preliminary conversation, appellant said he was not skilled enough to complete the carpentry work she showed him. As he was leaving, appellant said he was a martial arts expert and would like to show her how to defend herself. He told her to lie on the floor, but she refused. With a closed fist, appellant punched the victim in her jaw, breaking it, and knocked her to the ground. Then he pinned her shoulders back on the floor while he choked her to the brink of unconsciousness, simultaneously attempting to unzip and remove her pants. Appellant then ordered the victim to lift up her blouse and released her arm. Instead of complying, the victim struggled with appellant, grabbed a potted plant, and struck him with it. She managed to escape.

Police apprehended appellant after a high-speed car chase. The victim immediately identified him as her attacker from a photo lineup. Defendant pled guilty of second-degree aggravated battery and third-degree attempted sexual battery. On October 31, 1986, he was sentenced to five-year concurrent custodial terms. While incarcerated for this offense, appellant was convicted of threats against the life of a United States President and sentenced to four years and six months in Federal Corrections in Tennessee.

On or about June 4, 1993, while appellant was on parole, he met an adult female outside of a mental health center in Sussex County, and she accepted his invitation to lunch. Appellant then took her to an abandoned drive-in, told her he wanted to take her to "another dimension," began to massage her stomach, and choked her unconscious. When the victim awoke, she discovered she was naked from the waist up and her pants and panties had been pulled down to slightly above her knees. She was hospitalized with bruising across her neck, nose, and front scalp; a broken jaw; right arm numbness; and a rib fracture. At trial, appellant denied any wrongdoing and claimed he had tried to help the victim by holding her while she was suffering from an epileptic fit. Appellant was convicted of two counts of second-degree aggravated assault. On June 2, 1995, he was sentenced to a twenty-year custodial term with ten years of parole ineligibility.

On or about November 18, 2009, the State filed a petition for civil commitment pursuant to the SVPA. At the final hearing, the State presented the testimony of Dr. Dean DeCrisce, a psychiatrist, and Dr. Doreen Stanzione, a psychologist. Appellant elected not to present any witnesses or expert testimony on his behalf.

Dr. DeCrisce performed a clinical evaluation of appellant on March 8, 2010. However, the examination only lasted twenty minutes because of appellant's claim that he was a victim of mistaken identity and was, in fact, an undercover police officer with no arrest record. Dr. DeCrisce verified that appellant's claims were false. Appellant declined a second interview with Dr. DeCrisce on March 12, 2010.

Dr. DeCrisce, however, was able to formulate an independent conclusion, write a report, and testify based on his thorough review of appellant's complete discovery file and treatment records. He testified that the sources of information he reviewed were the types of documents normally considered by persons in his profession when conducting risk assessment evaluations and provide valuable background material about the individual. He stated he considered the diagnostic impressions of other experts found in the sources of information but, ultimately, formulated his own diagnosis of appellant.

Dr. DeCrisce testified at length regarding appellant's longstanding history of sexually violent offenses against adult women. He diagnosed appellant with Paraphilia NOS, Psychotic Disorder NOS, Personality Disorder NOS with antisocial and schizotypal traits, and possible polysubstance dependence. He opined that those diagnoses would affect appellant "such that he is at extremely high risk to sexually harm another individual, or sexually recidivate." He also opined that appellant would "still have serious difficulty controlling sexually offending behavior." Dr. DeCrisce scored appellant with an 8 on the STATIC-99 and a 7 on the STATIC-99 Revised tests,1 placing appellant in a category of those sexual offenders who are at high risk to reoffend in the reasonably foreseeable future. Dr. DeCrisce explained:

He has a number of risk factors, empirically demonstrated risk factors such as poor relationship history, poor community functioning. He has repeat sexual crimes, crimes that were committed after he was previously incarcerated, crimes that were committed while he was supervised, a great deal of victim impact as a result of a significant degree of violence in his offenses. He denies all culpability in any way, shape, or form with these offenses, and . . . he also has antisocial traits that contribute to his personality disorder, and possible substance abuse. All these combine to give him a very high risk of sexual recidivism, with no real mitigating factors except age, and 51 years old isn't considered a substantial age to decrease his risk in any real significant way.

On cross-examination, appellant posited that because he never admitted to a sexual component to his crimes, received sexual gratification, acknowledged masturbating to the acts, or penetrated his victims, his motivations were not sexually driven. Dr. DeCrisce, however, discounted these assertions, emphasizing that appellant's motivation in the three offenses was, nevertheless, sexually driven, considering, in all instances, he disrobed, or attempted to disrobe, a woman.

He also referenced his recent conversations with appellant regarding his claim that he was an undercover officer who was slipped into the identity of another individual and concluded that reflected a combination of appellant being delusional and attempting to avoid a negative outcome. Dr. DeCrisce further opined, "the fact that some of the delusions have changed, and the statements have changed to various individuals is also evidence to me that there is fabrication, with a great deal of facility[.]"

Dr. Stanzione interviewed appellant on March 8, 2010, for approximately twenty minutes. The brevity of the interview was similarly caused by appellant's assertion of mistaken identity and claim that the psychologist's questions about the record would, therefore, not pertain to him. Appellant declined Dr. Stanzione's attempt for a further interview a few days later. She made representations similar to that of Dr. DeCrisce regarding her ability to write a report and testify after reviewing numerous sources of information customarily relied upon by forensic experts in performing risk assessments and, ultimately, she arrived at her own diagnostic conclusions.

Dr. Stanzione discussed appellant's sexual offending history and found it clinically significant that an identifiable pattern existed in his crimes a pattern of increasing an individual's vulnerability, followed by a violent assault leading to significant victim trauma. She related that appellant scored a 7 on the STATIC-99 and a 10 on the MnSOST-R2 tests, placing him in the high risk category to sexually recidivate. Appellant also scored a 30 on the PCL-R,3 suggesting he met the diagnostic threshold for the construct of psychopathy. She also found to be of significance the dynamic factors of appellant's utter lack of accepting responsibility, acknowledgement of offending, or demonstration of insight because of his claim of mistaken identity.

Dr. Stanzione was further concerned about appellant's compulsivity, noting that he had been in the community on only two different occasions for less than one year since the age of eighteen. During those two occasions, in which appellant was under parole supervision, he reoffended within very brief periods of time, namely, within one month of re-entering society on one occasion and within eight months of the other.

Dr. Stanzione acknowledged that appellant had participated in some therapy and other programs. However, she found no suggestion in the records that the treatments were effective in adequately mitigating appellant's current risk to re-offend.

Dr. Stanzione diagnosed appellant with Provisional Paraphilia NOS, Provisional Sexual Sadism, Provisional Delusional Disorder (grandiose type), and Severe Antisocial Personality Disorder. The reason Dr. Stanzione applied a provisional diagnosis was because she was "conservative" in not making a full diagnosis, in large part based on appellant's lack of cooperation and claim of mistaken identity.

Dr. Stanzione opined that appellant would "still have serious difficulty controlling his sexual offending behavior" based on his history from age eighteen, multiple evaluations that pointed to appellant's need for inpatient treatment and inability to be in the community on his own, and his reoffending in a short period of time when he was released from jail. She further opined that based on the conditions she diagnosed, appellant was still predisposed to sexual violence and was at a high risk to sexually reoffend if not committed to the STU for treatment.

Judge John McLaughlin rendered a comprehensive oral decision on March 22, 2010, which canvassed the procedural and documentary record and case law. He also outlined in detail his findings regarding the testimony and opinions of Drs. DeCrisce and Stanzione, which he credited. The judge found the State clearly and convincingly proved its case for civil commitment. Appellant was convicted of several sexually violent offenses. Based on the expert testimony, Judge McLaughlin was convinced appellant suffered from both paraphilia and antisocial personality disorder. He further found, based on the uncontroverted medical testimony, that appellant "continues to have serious difficulty controlling his harmfully sexual violent behavior, such that it is highly likely that he will reoffend in the reasonably foreseeable future" based on "his multiple offenses, his unusually violent offenses, his re-offense after incarceration, his offense while under supervision, [] some of his victims being strangers, and his psychopathic personality."

Judge McLaughlin entered an order on the same date committing appellant to the STU, with a review scheduled for March 3, 2011. This appeal ensued.

On appeal, appellant raises the following arguments:

POINT

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.C. WAS A SEXUALLY VIOLENT PREDATOR.

A. THE STATE FAILED TO PROVE THAT J.C. HAD A MENTAL ABNORMALITY THAT CAUSED HIM "SERIOUS DIFFICULTY" CONTROLLING HIS SEXUALLY HARMFUL BEHAVIOR.

B. THE STATE FAILED TO PROVE THAT J.C. WAS "HIGHLY LIKELY" TO SEXUALLY REOFFEND IF RELEASED.

Our Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." See W.X.C., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z., 173 N.J. 109, 125 (2002).

Under the SVPA, an involuntary civil commitment can be ordered following 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. 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." W.Z., supra, 173 N.J. at 132. See also 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. 30:4-27.32(a).

The range of our appellate review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). 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., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting 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). "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).

Appellant does not dispute that he met the first prong of the test for civil commitment, namely that he committed a sexually violent offense. He primarily argues, based on articles and studies he did not present at trial, that Dr. Stanzione's "provisional diagnosis" is insufficient to satisfy the second prong of the statute that he suffers from a mental abnormality or personality disorder that predisposes him to commit acts of sexual violence. He further claims Dr. DeCrisce's opinion is deficient because he based his opinion on appellant's past inability to control his behavior, not on a finding of the existence of present predisposing mental abnormalities.

We reject appellant's arguments as without merit. Judge McLaughlin's findings are well-documented and supported by the record as to all three of the statutory prongs. Both experts diagnosed appellant based on their review of numerous and appropriate sources of information and on their limited clinical evaluations of appellant, resulting from his lack of cooperation and adherence to the delusion and or fabrication that he was an undercover police officer. N.J.S.A. 30:4-27.26 defines a "sexually violent predator" as someone who "suffers from a mental abnormality or personality disorder." Contrary to appellant's assertion, the experts did not just diagnose appellant as suffering from a simple antisocial personality disorder. Rather, the State's experts presented clear and convincing evidence that appellant suffered from both a mental abnormality and a personality disorder affecting him either emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence and that he was highly likely to do so if discharged from the STU.

Appellant also misconstrues Dr. Stanzione's testimony and diagnosis in his argument that the State failed to prove the last prong that he was "highly likely" to sexually reoffend if released. As the judge found, the record clearly demonstrated this prong. Appellant's past violent sexual behavior is an important indicator of future violent tendencies. See W.Z., supra, 173 N.J. at 129; In re C.A., 146 N.J. 71, 105 (1996).

It is uncontroverted appellant is a sexually-offending recidivist who has not been deterred by incarceration. The testing performed by the experts also demonstrated appellant has a psychopathic personality and falls within the "high risk" category of persons likely to sexually reoffend in the reasonably foreseeable future. Accordingly, we discern no legal basis upon which to second-guess the judge's order civilly committing appellant to the STU.

1 These tests are actuarial measures of relative risk for sexual offense recidivism.

2 The MnSOST-R, the Minnesota Sex Offender Risk Assessment Screening Tool - Revised, is an actuarial instrument utilized to predict the risk of sexual reoffending.

3 The PCL-R 2nd Edition provides a dimensional score that represents the extent to which a given individual is judged to match the "prototypical psychopath."