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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5574-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.J.W., SVP-359-04.

____________________________________

November 2, 2012

 

Argued October 15, 2012 - Decided

 

Before Judges Parrillo and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-359-04.

 

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

 

Justin L. Conforti, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).

PER CURIAM

K.J.W. appeals from a June 4, 2012 order continuing his involuntary civil 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 affirm.

A criminal defendant convicted of a predicate offense under the SVPA may be subject to involuntary civil commitment when he or she suffers from "a mental abnormality or personality disorder that makes [him or her] 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32a.

To warrant commitment, or the continuation of commitment, the State must prove 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 the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." Id. at 132, 134; see also In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div. 2007), certif. denied, 192 N.J. 296 (2007). The State met its burden here.

The record reveals that K.J.W. has an "extensive criminal history" dating back to when he was ten years old involving convictions and/or infractions for, among others, burglary, aggravated assault, aggravated sexual assault, armed robbery, armed burglary, possession of a weapon, sexual threats, and indecent exposure. He is now thirty-five years of age.

The predicate offense occurred on the night of May 19, 1992. Earlier in the day, then-fifteen-year-old K.J.W. broke into twenty-four-year-old D.U.'s apartment and "ransacked" it while she was away. K.J.W. returned to D.U.'s home at night and entered while she and her two young children slept. K.J.W. grabbed her by the hair, pulled her off the bed, held a knife to her throat, and dragged her into the living room. He forced D.U. to disrobe, disrobed himself, and attempted both anal and vaginal intercourse. K.J.W. was unable to penetrate D.U.'s vagina and D.U. stated that he was hurting her. K.J.W. replied, "Shut up bitch or I'll hurt you." K.J.W. then forced D.U. to perform fellatio. Thereafter, K.J.W. vaginally penetrated D.U. After he penetrated, D.U. reported that she felt a "jerk" and then her vagina felt "wet." K.J.W. removed his penis and threatened to "hurt her bad" if she reported the incident to the police. He left the apartment but returned fifteen minutes later while using a knife to threaten D.U. that he would "cut her throat and the throats of her two children" if she reported the incident. K.J.W. demanded money and D.U. gave him two gold necklaces and "five or six dollars" before K.J.W. left the apartment.

On June 30, 1993, K.J.W. pled guilty to two counts of aggravated sexual assault while armed, N.J.S.A. 2C:14-2a(4); attempted aggravated sexual assault while armed, N.J.S.A. 2C:5-1, 2C:14-2a(4); armed robbery, N.J.S.A. 2c:15-1; and armed burglary, N.J.S.A. 2C:18-2. On February 16, 1994, the judge sentenced K.J.W. to an aggregate term of fifteen years imprisonment at the Youth Correction Facility.

The State first petitioned for and obtained temporary civil commitment for K.J.W. on February 20, 2004. On March 18, 2004, the court found that K.J.W. was a sexually violent predator and ordered he be remanded to STU. Subsequent review hearings resulted in orders that have continued commitment. K.J.W. has appealed those decisions; we affirmed each. See In re Commitment of K.J.W., No. A-0800-09 (App. Div. Feb. 1, 2010); In re Commitment of K.J.W., No. A-3666-06 (App. Div. Nov. 7, 2007), certif. denied, 194 N.J. 272 (2008); In re Commitment of K.J.W., Nos. A-3953-03, A-3640-04 (App. Div. July 18, 2006).

The most recent review hearing occurred on May 22, 2012, which resulted in the order continuing commitment now before us. On appeal, K.J.W. argues that the State failed to prove by clear and convincing evidence (1) all of the elements necessary to commit him; (2) that he is highly likely to reoffend if not confined at the STU; and (3) that he suffers from a mental or emotional condition, which may cause him to reoffend sexually. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm with only the following brief comments.

At the May 22, 2012 hearing, the State presented Drs. Marta Scott and Nicole Paolillo. Dr. Scott diagnosed K.J.W. with antisocial personality disorder1 and testified that K.J.W. scored a nine on the Static-99R test,2 which corresponds with a "high risk for sexual recidivism." She testified that "99.1% to 99.7% of sex offenders scored at or below [K.J.W.'s] score." Dr. Scott further testified that it is "highly likely" that K.J.W. will reoffend because he "has not taken responsibility for [his sexual assault]. Has not engaged in sexual offender treatment in any meaningful way. Has no relapse prevention plan. Is unaware of his own dangerousness and unaware of his risk factors, triggers, et cetera. And there is no treatment effect today in his case." In her psychiatric evaluation report, dated May 3, 2012, Dr. Scott concluded that "[a]t this time, [K.J.W.] remains an untreated sex offender and continues to be at high risk to reoffend if not confined to a secure treatment facility such as the STU."

Dr. Paolillo, from the Treatment Progress Review Committee, testified that K.J.W. scored a 31.8 on the Psychopathy Checklist-Revised.3 The score "suggests [K.J.W] meet[s] the diagnostic threshold for the construct of psychopathy." Dr. Paolillo also gave K.J.W. the Static-99R test and he again scored a nine. Dr. Paolillo concluded that K.J.W.'s "psychopathic personality, lack of treatment effect, resistance to treatment, and actuarial assessment indicate that [K.J.W.] is high risk to sexually recidivate."

On June 4, 2012, the court found by clear and convincing evidence that K.J.W. is still in need of commitment. The court credited the testimony of both experts, agreed that there was substantial evidence to support their conclusions, and found that if K.J.W. were released, "he would have serious difficulty controlling his sexually violent behavior, and would be highly likely to . . . re-offend within the reasonably foreseeable future."

Our standard of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). After carefully reviewing the record on appeal, we find no abuse of discretion and conclude that all of the judge's findings are supported by testimony the judge was entitled to credit, these findings are entitled to our deference, and the judge did not abuse his discretion in continuing the commitment of K.J.W. pursuant to the SVPA. We affirm substantially for the reasons set forth by Judge Philip M. Freedman in his oral decision of June 4, 2012.

1 Dr. Scott noted that antisocial personality disorder "refers to a pervasive pattern of disregard for and violation of the rights of others that begins in childhood . . . and continues into adulthood."

2 This test is a risk-prediction instrument that measures the relative risk for sexual offense recidivism.

3 The checklist provides a dimensional score that represents the extent to which a given individual is judged to match the prototypical psychopath.