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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4328-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF

J.S.D., SVP-115-00.

______________________________

November 13, 2012

Argued October 15, 2012 - Decided

Before Judges Parrillo and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-115-00.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

J.S.D. appeals from a March 30, 2012 order of the Law Division continuing his involuntary civil commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Born on January 5, 1954, J.S.D., has an extensive offense history that includes charges for twelve sexual offenses resulting in nine convictions for sexual assault. His victim profile is varied, including adult females, underage females, and prepubescent children. His contact offenses range from vaginal-penile rapes to frotteuristic offenses in which he would rub his genitals against unsuspecting female strangers until he ejaculated. He has utilized weapons or the threat of weapon in multiple offenses.

J.S.D. was evaluated and twice determined eligible for sentencing under the New Jersey Sex Offender Act, N.J.S.A.

2C:7-1 to -11, and, therefore, eligible for treatment at the Adult Diagnostic and Treatment Center (ADTC), where he served two sentences, for a total of approximately four years. J.S.D. had reoffended soon after being paroled from both ADTC sentences.

The predicate offense occurred on January 25, 1990, when J.S.D. sexually assaulted a sixteen-year-old female, who reported that J.S.D. forced her from a pay phone into a gas station bathroom, where he threatened her with a stick and forced her to engage in vaginal intercourse. As a result, on February 26, 1992, J.S.D. was found guilty of one count of kidnapping and one count of criminal sexual contact and sentenced to a ten-year prison term.

At the expiration of his prison term, J.S.D. was initially committed to the STU on December 20, 2000. Since then, J.S.D. has had multiple review hearings, in which the court found he satisfied the requirements for continued commitment.

The present appeal arises from J.S.D.'s most recent review hearing on March 30, 2012, at the close of which the trial judge continued his involuntary commitment. At the hearing, the State presented the testimony of Dr. Pogos Voskanian, a psychiatrist, and Dr. James Canataro, a member of STU's Treatment Progress Review Committee (TPRC). Dr. Voskanian diagnosed J.S.D. with frotteurism, a disorder in which a person derives sexual gratification from rubbing his genitals against another person, usually in a crowd. The victims of J.S.D.'s frotteurism number between thirty and forty. Although Dr. Voskanian did not diagnose J.S.D. with pedophilia, he noted the fact that J.S.D. prefers young, post-pubescent girls suggests pedophilia. J.S.D.'s primary sexual activity is rubbing; intercourse or oral sex are secondary. According to Dr. Voskanian, J.S.D. is not able to control himself, as evidenced by his numerous convictions, even after treatment at ADTC. J.S.D. has also been diagnosed with bipolar disorder and is on medication.

Dr. Voskanian testified that J.S.D. "puts a lot of effort into image management," and tries to present himself in a better light by denying his fantasies, pathology, and actions. As to the predicate offense, J.S.D. gave conflicting accounts and claimed it was consensual. Dr. Voskanian concluded that J.S.D. has not made "sufficient progress" in his treatment and remains at a high risk to reoffend in the foreseeable future based on a:

[l]ifelong history of offending. No response to measures taken to impede the sexually violent behavior. Nothing worked to decrease it. Nothing worked to contain it. Twice at the ADTC, incarcerations, multiple arrests, eight convictions. Nothing worked. Numerous victims. It did not stop [J.S.D.]. He continues to fantasize about similar activities. He cannot ejaculate unless he changes his fantasy to aggressive fantasy. And that speaks of itself that the risk has not diminished and he does remain at high risk.

As a member of the TPRC, Dr. Canataro interviewed J.S.D. on January 24, 2012, and also administered to him the Static-99R exam, which measures the relative risk for sexual offense recidivism. J.S.D. scored an "8," which indicates a high risk to reoffend sexually.

According to Dr. Canataro, J.S.D. is currently in Phase Three, in which "residents identify their core areas that they need to address within treatment and they are actively addressing them," and is an active member of this therapeutic community. However, he avoided a polygraph because he masturbated to a deviant fantasy five months prior and hid it from the treatment team. J.S.D. admitted to Dr. Canataro that this deviant fantasy began as an appropriate fantasy but he was having difficulty ejaculating. So, J.S.D. switched his fantasy to a forceful interaction with a female, allowing him to ejaculate successfully. Dr. Canataro concluded this indicated that J.S.D. continues to have deviant arousal about nonconsensual sexual activity despite over ten years of treatment.

Dr. Canataro also opined that J.S.D. has a "tendency to objectify and sexualize females, including female staff members at the facility." J.S.D. is actively placing himself in these situations, which leads to his deviant arousal. J.S.D. has not been moved up to Phase Four of the treatment because he remains a high risk and has difficulty controlling his deviant arousal despite years of treatment. Dr. Canataro thus recommended that J.S.D. continue in Phase Three of treatment as he "continues to remain a high risk to sexually reoffend."

Dr. Gary Collins testified for J.S.D. He found that J.S.D. was "very forthright" about his offense history; has shown "significant remorse"; has been a very active participant in discussion groups; and has developed a "very extensive reversal script to help reduce his arousals." Moreover, J.S.D. has not committed any offenses at STU and Dr. Collins describes him as a "model individual." Dr. Collins thus concluded that J.S.D. must continue therapy, but he is not highly likely "to reoffend sexually if he were under stringent conditions of an appropriate treatment plan on an outpatient basis."

At the close of evidence, Judge Mulvihill concluded that J.S.D.'s commitment should continue. The judge credited the testimony of Drs. Voskanian and Canataro, and disagreed with the risk assessment rendered by Dr. Collins. In response to the expert's finding that J.S.D. can be conditionally released, the court noted that Dr. Collins did not offer sufficient conditions except drug injections. While agreeing that J.S.D. has made progress, the court nevertheless found that he remains a danger to society, evidenced in part by the fact that J.S.D. still masturbates to his deviant arousal, which is to use force on a fantasized victim. The court thus concluded that J.S.D. "has serious difficulty controlling sexual harmful behavior and it's highly likely he will not control his sexual violent behavior and will reoffend if not confined."

This appeal followed.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish "that it is highly likely that" the individual will reoffend by clear and convincing evidence." Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 131-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow," and the trial court's decision should be given the "'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) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of March 20, 2012.