A-0IN THE MATTER OF THE CIVIL COMMITMENT OF K.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.W. SVP-70-00.

_______________________________

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-70-00.

Peter W. Latimer, Assistant Deputy Public Defender, argued the cause for appellant K.W. (Joseph E. Krakora, Public Defender, attorney).

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

PER CURIAM

K.W., a thirteen-year resident of the Special Treatment Unit (STU), which is a secure custodial facility designated for the treatment of persons in need of involuntary civil commitment

under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, appeals from an order for his continued civil commitment following an annual review hearing. On appeal, K.W. argues new evidence undermines his conviction

for the predicate offense such that the State failed to prove by clear and convincing evidence that he suffers from a condition making him highly likely to commit sexually violent offenses if released. We reject this contention and affirm.

I.

A person convicted of a sexually violent offense may be subject to civil commitment as a "[s]exually violent predator" upon proof 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. The SVPA defines a "[m]ental abnormality" as "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. Such 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). However, "substantive due process does not require the extreme finding of a total lack of capacity to control such dangerous behavior." Id. at 126-27. That is, "[a] finding of mental abnormality that results in an impaired but not a total loss of ability to control sexually dangerous behavior can be sufficient[.]" Id. at 126. To continue an order of commitment,

the State bears the burden to prove by clear and convincing evidence that the committee suffers from a mental abnormality or personality disorder, and remains in need of treatment because of a present serious difficulty controlling harmful sexually violent behavior causing the committee to be highly likely to reoffend if released. N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32a; N.J.S.A. 30:4-27.35. See also In re Commitment of W.Z., supra, 173 N.J. at 130 ("Once committed under the SVPA, an 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."); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610 (App. Div. 2003) (reiterating the legislative purpose "to help the committee and protect society"), certif. denied, 179 N.J. 312 (2004).

The scope of our 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). Recognizing the trial court's expertise in the handling of these cases, we accord "'utmost deference'" to the trial judge's determinations. 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)). Reversal is warranted if the court's factual findings

are unsupported or "the record reveals a clear abuse of discretion." Ibid. (citation omitted). "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).

II.

K.W. was initially committed to the STU on October 5, 2000. K.W. has an extensive nonsexual criminal history commencing when he was a juvenile in 1974, and his first adult conviction in 1980. We briefly review K.W.'s criminal sexual history, which began twenty years prior to the offense upon which his commitment was predicated, when he was just thirteen years old. On December 10, 1976, he was charged with and adjudicated delinquent on two counts, which, had they been committed by an adult, would constitute impairing the morals of a minor. His custodial sentenced was suspended and he was placed on probation for two years. On November 4, 1981, K.W. was arrested and charged with burglary and attempted sexual assault. He was convicted of the burglary, for which he received a county jail sentence, and the sexual assault was downgraded to disorderly conduct and later dismissed. In 1983, K.W. was charged and later convicted of assault, for which his sentence was

suspended, and burglary resulting in a county jail sentence of 364 days, among other crimes.

K.W.'s next sexual offense occurred in April 1985. A friend, who was babysitting the eight-year-old female victim, invited K.W. over for a party at her home. Around 2 a.m., K.W. advised the babysitter he was not feeling well and asked to go lay down. Although the babysitter believed K.W. was entering another bedroom, he in fact entered the bedroom of the victim, where the babysitter discovered him standing over the girl's bed; her nightgown was pulled above her head; her underwear was pulled down; her legs were spread; and his penis was exposed. The victim reported K.W. had "'humped her' and that he had put it inside of her[.]" He also kissed her and put his tongue in her mouth. K.W. was charged with aggravated sexual assault, sexual assault, and endangering the welfare of a child. He pled guilty to aggravated sexual assault and was sentenced to an indeterminate ten-year prison sentence at the Adult Diagnostic and Treatment Center (ADTC).

K.W. was released from ADTC in 1989. He was arrested for the predicate sexual offense on November 28, 1996, after it was reported he had a taken the thirteen-year-old victim, the daughter of a friend, to a liquor store, where she reported he told her he loved her, "stuck his tongue down her throat and

grinded against her[.]" The victim pushed him away and began to escape, and K.W. threatened that he would kill her if she told anyone. K.W. was charged with three counts of criminal sexual contact, N.J.S.A. 2C:14-3b, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a. He pled guilty to endangering the welfare of a child and was sentenced to four years in prison, with credit for time served.

In April 2000, upon completion of his criminal sentence, the State petitioned for K.W.'s civil commitment pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe K.W. was a sexually violent predator and issued a temporary commitment order on April 20, 2000. K.W. was transferred to the STU pending a final hearing, which was held on October 5, 2000.

The court found the State's evidence clearly and convincingly established K.W. was a sexually violent predator and, as a result, remanded him to the STU. The need for K.W.'s continued commitment was reviewed on March 14, and 30, 2001; October 16, 2001; April 18, 2002; October 11, 2002; October 1, 2003; April 18, 2005; October 28, 2005; July 9, 2006; September 24, 2008; October 29, 2010; and October 18, 2011. Following each hearing, the trial judge found K.W. continued to be a

sexually violent predator in need of further treatment, and ordered that he remain confined in the STU.

The most recent review of K.W.'s status was held on February 14, 2013. The State presented expert evidence from Paul Dudek, Ph.D., a member of the STU's treatment progress review committee (TPRC), which was responsible for the annual review of K.W.'s recommended treatment, and Roger Harris, M.D., a psychiatrist who sought to evaluate K.W.'s mental status. The State also admitted the doctors' joint annual review report dated November 28, 2012.

Dr. Dudek participated in K.W.'s annual TPRC review to assess his progress for the purpose of recommending treatment. K.W. was diagnosed as a pedophile, sexually attracted to females, nonexclusive, who exhibited antisocial personality disorder, borderline intellectual functioning, and alcohol abuse. He had been directed to participate in cognitive life skills because of his cognitive limitations, during which he fell asleep four times and at other times was inattentive. He noted when K.W. desires to engage he provides helpful feedback and expresses meaningful insight. However, K.W. remains assigned to Phase 2 as he had withdrawn from treatment over the past several years and recently returned. Dr. Dudek related K.W. has experienced some recent progress, to the extent he had

a supervised visit with his fourteen-year-old daughter "somewhat successfully[,]" began to more fully participate in treatment, and completed his modules in substance abuse prevention and initial relapse prevention skills.

When questioned regarding K.W.'s limited progress during his nearly thirteen-year period of commitment, Dr. Dudek reported:

[He] denies and minimizes the nature of the offenses in the sense that the . . . 1976 offense he just claimed that he ripped the victim's clothes while, . . . [as] he refers to it as playing "grab ass" with her.

2 With the 1981 offense, he denies committing that.

2 With the 1985 offense he denies any penetration.

. . . .

Certainly, [K.W.] has a long history of being . . . at the STU . . . [with] periods of treatment refusal. During several past TPRC review periods he had been on treatment refusal status. However, in the last possibly year and a half, he has begun to utilize the process groups . . . . However, he's had some difficulties in terms of the consistency of his participation and addressing some of the treatment concerns.

. . . .

Most [significantly], the most important aspect for [K.W.] is to increase his accountability with the nature of the sex offenses.

Notwithstanding these new strides, K.W.'s score of 6 on the Static-99R falls in the high risk category for being charged or convicted of another sexual offense; he continues to have significant difficulties with consistency and participation in treatment directly related to sexually offending behavior. Dr. Dudek opined "due to the nature of [K.W.'s] denial and minimization of the sexual offending behavior[,]" and the fact that he "doesn't necessarily see himself as a sex offender[,]" he posed "a high risk to reoffend."

On cross-examination, Dr. Dudek acknowledged K.W.'s record demonstrated periods during which no sexual offenses were committed, explaining "[t]here can be periods of latency where there might be some degree of control or there could be a period of time where an individual goes undetected . . . while engaging in those behaviors." Finally, Dr. Dudek reported he was confident K.W. had been correctly diagnosed as suffering from pedophilia

looking at the history of the sexual offending behavior, the nature of the victims and the age range that have been of the victims over time, which has remained consistently the same . . . . So it's through that behavior occurring consistently over a number of years as part of an overall broad antisocial orientation.

Dr. Harris explained K.W. declined his request to participate in a current evaluation. Consequently, he formed

his independent psychiatric opinion "based on the records[,] based on prior reports[,] and other materials[,]" including "clinical certificates, PSI, TPRC reports, prior forensic evolutions and progress notes[.]" Dr. Harris diagnosed K.W. as suffering from antisocial personality disorder and pedophilia, which in combination "increase one's risk to sexually reoffend." Considering K.W.'s history of alcohol abuse, Dr. Harris opined "[t]he antisocial personality disorder clearly erodes [K.W.'s] ability to control his impulse control and the alcohol would basically compromise even those checks and balances for his impulse control." When asked whether K.W. had acquired the skills to help resist some of those impulses through treatment, Dr. Harris acknowledged K.W. had made progress in recent months, however, he identified K.W.'s limited progress resulted from his history of treatment refusal and "significant minimization and denial in treatment as to the difficulties that he's gotten into in terms of his sexual behavior." Dr. Harris opined K.W. was "[h]ighly likely" to reoffend in the foreseeable future if not recommitted to the STU for further treatment.

K.W. sought to recount what occurred during the offenses resulting in sexual convictions. The State's objection was sustained as Judge James F. Mulvihill concluded he had no jurisdiction to consider claims in the nature of post-conviction

relief (PCR). The record also includes a transcript from a September 4, 2009 PCR evidentiary hearing before Judge Jeanne T. Covert. The record includes the testimony of N.S., identified as K.W.'s 1996 victim, but does not include Judge Covert's disposition. K.W. argues the victim's PCR testimony recants prior reports of his wrongdoing.

At the conclusion of the review hearing, Judge Mulvihill placed a thorough and comprehensive opinion on the record. He credited the experts' testimony provided and reports admitted into evidence, finding K.W.'s "conditions . . . predispose him to sexual violence[,]" which "effect[s] him emotionally, cognitively, volitionally and . . . he's predisposed to sexual violence, [with] serious difficulty controlling sexual violence." Accordingly, the judge concluded the State presented clear and convincing evidence K.W. suffered a mental abnormality and presently posed a high risk to sexually reoffend if not confined to the STU.

III.

K.W. argues his conduct does not evince sexual violence and he is not in need of civil commitment under the SVPA. In this regard, he maintains we must exclude the 1996 guilty plea from consideration because the victim recanted, and accept his description of his other sexual convictions in a manner widely

divergent from official records. We conclude these arguments lack sufficient merit to warrant consideration in our opinion. R. 2:11-3(e)(1)(E). Judge Mulvihill's findings and conclusion are amply supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). K.W.'s long-standing criminal history includes convictions and arrests for sexual offenses against female children. Dr. Harris's current evaluation, which properly utilized past pre-sentence reports, police reports, prior psychiatric and psychological evaluations, testing results, and current treatment records to arrive at his independent diagnosis, diagnosed K.W. with pedophilia and antisocial personality disorder. See In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div.), certif. denied, 185 N.J. 393 (2005) (addressing experts' use of hearsay materials). It is also unrefuted that K.W. suffers from alcohol abuse, and has used alcohol in the past offenses to lower his inhibitions. Finally, both experts' objective testing and evaluations stated K.W.'s periods of treatment refusal and his current rendition of events, coupled with his view he is not in need of treatment, impedes therapy efforts and increases the likelihood that if released from the STU, he would be highly likely to reoffend. We find no error and discern no abuse of

discretion in ordering K.W.'s continued confinement to a secure facility for treatment.

Affirmed.

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