A-0IN THE MATTER OF THE CIVIL COMMITMENT OF R.B SVP-165-01

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NOT FOR PUBLICATION WITHOUT THE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 R.B., SVP-165-01.

______________________________________________

Argued May 13, 2014 Decided June 12, 2014

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-165-01.

Colin C. Most, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Laura T. Mastriano, Deputy Attorney General, argued the cause for the respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

Appellant R.B. (Richard)1 appeals from the December 10, 2012 order continuing his commitment to the New Jersey Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After a review of the record and applicable legal principles, we affirm.

We glean the following facts from the record. Richard's involvement with the justice system for sexual offenses began in 1991, when he, then eleven years old, allegedly sexually assaulted A.J., a three-year-old girl, by fondling her and forcibly vaginally penetrating her. Richard was arrested and charged with acts, which if committed by an adult would be aggravated sexual assault, N.J.S.A. 2C:14-2. The disposition of this case is not contained in the record, but Richard has admitted to prior evaluators that he "rubbed up against" A.J. for about five minutes.

In 1994, Richard's three-year-old male cousin, Y.F., reported that Richard removed Y.F.'s pants and "bit" Y.F.'s penis, placed his penis in Y.F.'s mouth, and anally penetrated Y.F. On March 3, 1994, Richard was charged with acts, which if committed by an adult would constitute sexual assault, N.J.S.A. 2C:14-2(b). On May 17, 1994, the juvenile court adjudicated Richard delinquent and gave him a three-year suspended sentence with a three-year term of probation, conditioned on Richard completing a Division of Youth and Family Services (Division) residential program. For two months, Richard was a resident at the TRIAD program, but he was expelled after he was accused of molesting two fellow female residents while they slept. The Division later placed him at KidsPeace in Pennsylvania from which he was discharged in 1996, after being accused of sexually assaulting a male and a female peer.

On May 24, 1996, the juvenile court found that Richard's discharge violated his probation terms and vacated his suspended sentence. The court ordered Richard into the custody of the Juvenile Justice Commission to reside at a sexual offenders program for up to three years. On October 22, 1998, Richard allegedly sexually assaulted a fellow inmate.2

When Richard completed his sentence on December 6, 1998, he was civilly committed to the Ann Klein Forensic Center (Ann Klein) under the general civil commitment statute, N.J.S.A. 30:4-27.1 to -27.23 and Rule 4:74-7. On November 1, 2000, Richard was charged with endangering the welfare of a child, N.J.S.A. 2C:24-4(a), after sending a sexually explicit letter with a tracing of his penis to a thirteen year old.3

Richard was diagnosed with Attention Deficit Hyperactivity Disorder, Adjustment Disorder, Pedophilia NOS, Impulse Control Disorder NOS, Depressive Disorder NOS, Polysubstance Abuse, Antisocial Personality Disorder, and Paraphilia, Aggressive. While at Ann Klein, he was expelled from a sex offender treatment program after his participation was deemed avoidant, disruptive, hostile, manipulative, anti-therapeutic, and marked by a refusal to participate.

On March 29, 2001, the Attorney General filed a petition for civil commitment of Richard under the SVPA. The petition was accompanied by certifications from Fadel A. Salib, M.D. and Mahmood Ghahramani, M.D., who both averred that Richard was likely to reoffend if not confined. Richard, represented by counsel, stipulated that the State's evidence proved by clear and convincing evidence that he was "a sexually violent predator in need of involuntary commitment in a secure facility for control, care and treatment[.]" The court committed Richard to the STU under the SVPA by order on October 15, 2001. Upon review, the court continued Richard's commitment several times thereafter. On April 13, 2005, and again on December 4, 2006, we affirmed Richard's continued commitment. In re Civil Commitment of R.B., SVP-165-01, No. A-3133-03 (App. Div. Apr. 13, 2005); In re Civil Commitment of R.J.B., SVP-165-01, No. A-3984-05 (App. Div. Dec. 4, 2006), certif. denied, 190 N.J. 255 (2007).

The treatment records show that Richard had an extensive history of stealing while in custody as well as other institutional rules violations. He was charged with assault at Trenton Psychiatric Hospital in 2006 after breaking the arm of another patient, he was found to have someone else's credit card and a credit card number in 2001, matches were found in his room after an adjacent resident's room was set on fire, and he was disciplined for participating in an assault on an officer.

During his sex offender treatment Richard was reportedly "avoidant and uncooperative, and overall minimally involved in treatment." Richard often did not attend his treatment, refused to participate, walked out of it, or was noncompliant with requirements. As a result, he was frequently disciplined, placed on treatment probation, or required to retake modules. He was placed on Modified Activities Program (MAP) status six separate times for having pills and drug paraphernalia, possessing pornography, assaulting other residents, threatening another resident, and testing positive for drugs. In addition, Richard often refused to submit to drug testing, but did test positive for methamphetamine and THC, which he asserted were false positives.

The treatment providers found Richard "to be incapable of empathy and remorse, having persistent deviant urges and deviant fantasies." His periodic reviews noted he presented with a continued danger of sexually reoffending and a marked indifference or resistance to treatment. They also noted that Richard rarely discussed his sexual offenses, would not address his issues, and had no relapse prevention plan or command over his sexual assault cycle. He advanced to phase two of the STU's five-phase treatment program in 2009, but has not advanced since.

Richard's Static-99 testing in 2000 showed a score of six, or a high risk of recidivism. His testing in 2009, 2011, and 2012 all resulted in a score of five or a moderately high risk. Richard scored a 25.6 in the Psychopathology Checklist-Revised, Second Edition, which fell within the high range of psychopathy.

On December 10, 2012, Judge John H. Pursel held a hearing regarding Richard's continued commitment. The judge heard the testimony of Alberto M. Goldwaser, M.D., a psychiatrist, Jamie R. Canataro, Psy.D., a clinical psychologist, and Richard.

Dr. Goldwaser attempted to perform a forensic psychiatric evaluation of Richard on December 3, 2012, but Richard refused to participate. As such, the doctor's report and testimony were based on Richard's history, treatment notes, prior reports, and a 2011 examination. The doctor noted that Richard denied any sexual offense aside from one wherein he was eleven and he "rubbed up against" a three-year-old girl. Richard also claimed he got in trouble at TRIAD and KidsPeace not because of sexual acts, but for fighting and refusing to follow the rules.

Dr. Goldwaser found Richard to be guarded, uninterested, bothered by the examination, detached, frustrated, uninformative, lacking in remorse, and evasive. The doctor noted that Richard did "not come across as having benefitted from sex offender specific treatment," and was still in the beginning stages of the middle phase of treatment with a possible emerging interest in treatment.

The doctor concluded that Richard suffered from Pedophilia (male and female, non-exclusive), Substance Abuse (in controlled environment), and Antisocial Personality Disorder. The doctor opined that Richard's "pedophilic arousal ha[d] a very early onset evidenced by his first sexual offense at the age of 11, indicating a strong and unshakable arousal."

The doctor observed that Richard's "personality disorder and substance abuse [made] him vulnerable to significant regressions, further impairment of self-control, and upsurges in deviant sexual behavior." Moreover, the doctor determined that Richard had not attained any of the crucial objectives of his treatment, and his risk of recidivism had not been reduced.

The doctor testified that Richard's victim selection demonstrated that his "sexual urge [could] be satisfied with any type of victim, which ma[de] it even more difficult to control." The doctor concluded that Richard had not yet had enough treatment to control his impulses and was highly likely to reoffend if he did not remain in the STU. When questioned on cross-examination about the fact that the majority of Richard's history was derived from untested allegations, Dr. Goldwaser stated that a trajectory was present because there were so many accusations from so many different sources, which pointed to a pattern that went beyond mere sexual curiosity.

Dr. Canataro was a member of the Treatment Progress Review Committee (TPRC) at the STU and had written a report on its behalf following a February 21, 2012 interview with Richard. Dr. Canataro noted that Richard presented with a "laid-back" attitude and demonstrated minimal treatment knowledge. The doctor opined "that despite [Richard's] exposure to sex offender treatment for . . . approximately twelve years, he evidence[d], at best, an elementary understanding of relapse prevention and knowledge." The TPRC was concerned that Richard would never demonstrate a pro-treatment attitude, particularly because he denied all but one sexual allegation against him.

Dr. Canataro diagnosed Richard with Pedophilia (sexually attracted to males and females, non-exclusive type) provisional, Substance Abuse (in a controlled environment), Attention-Deficit/Hyperactivity Disorder (by history), and Antisocial Personality Disorder. The doctor found that, although possible that Richard's pedophilic actions "may have been primarily driven by his antisocial personality structure, the goal driven behavior of his offenses as well as the early onset of his sexual offenses, [could not] be wholly ignored." As to Richard's substance abuse, the doctor noted that he denied drug use, but his history belied his assertion. Dr. Canataro found that Richard's personality disorder showed a disregard for others' rights; was demonstrated through stealing, assaultive conduct, and sexual assault; was marked by impulsiveness, poor frustration tolerance, and a lack of remorse; and was emphasized in his pattern of refusal to participate in treatment.

The doctor noted that Richard's sexual deviance and antisocial behaviors had not been controlled by placement in highly structured supervised settings. Dr. Canataro found that Richard's advancement potential had been interrupted by his antisocial personality, which gave evaluators less confidence that he would be capable of remaining behaviorally stable in a less secure environment. The doctor concluded that Richard remained at high risk for sexual recidivism.

The doctor testified that she had reviewed Richard's case for the preceding five years and had continually looked for advancement; however, Richard was "his own worst enemy" in that he did not engage in treatment, failed to complete modules, and acted out.

Richard testified that he pled guilty only to the 1991 incident with A.J., but that he had merely momentarily "rubbed up against" the girl while both of them were fully clothed. Richard denied the details of his 1994 juvenile adjudication involving Y.F. or that he was ever charged based on Y.F.'s allegations. Essentially, Richard denied all other allegations contained in the record against him.

Judge Pursel issued an oral opinion at the close of the hearing. He began with a review of the evidence and testimony he relied upon, as well as Richard's history. The judge found evidence that the defendant made himself out to be a victim and refused to solve his own problems. The judge also found that, despite Richard's denials, sufficient evidence indicated that he engaged in the inappropriate sexual incidents that the doctors permissibly relied on in their assessments.

Judge Pursel concluded that Richard "suffer[ed] from a mental abnormality or personality disorder of antisocial personality and pedophilia being a direct diagnosis or as a provisional diagnosis, and that there[ was] clear and convincing evidence that the resident [was] highly likely to engage in further acts of sexual violence if not confined to a secure facility[.]" The judge commented that Dr. Canataro was clear that Richard could easily progress if he changed his attitude, and the judge agreed with the doctor. Judge Pursel issued an order the same day continuing Richard's commitment under the SVPA. This appeal followed.4

Before us, Richard contends that the trial judge erred in finding that the competent evidence showed that he currently suffers from a mental abnormality that makes him highly likely to engage in an act of sexual violence if not committed at the STU. We disagree.

The applicable law is well-settled. Under the SVPA, an involuntary civil commitment can follow 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. As defined by the statute, a mental abnormality is "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. A mental abnormality or personality 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). The statute does not require a "complete loss of control[.]" Id. at 128. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; see also In re Civil Commitment of R.F., SVP 490-08, 217 N.J. 152, 173-74 (2014).

At the SVPA commitment hearing, the State must prove:

a threat to the health and safety of others because of the likelihood of [an SVPA offender] 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.]

The court must address an individual's "serious difficulty in controlling sexually harmful behavior," ibid., and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. R.F., supra, 217 N.J. at 173.

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a).

The scope of our review of judgments in SVPA commitment cases "is extremely narrow." R.F., supra, 217 N.J. at 174 (internal quotation marks and citations omitted). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). On appeal, we give deference to the judicial findings from the commitment hearings, not only in recognition of the SVPA judge's expertise, but also because the judge has "the 'opportunity to hear and see the witnesses'" and also to "'have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

For these sound reasons, an appellate court should not modify the SVPA trial judge's "determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Applying these deferential principles here, we affirm the order directing Richard's continued commitment, substantially for the reasons set forth by Judge Pursel in his oral decision of December 10, 2012. There is substantial credible evidence in the record, including the expert testimony of Drs. Goldwaser and Canataro, to support Judge Pursel's conclusion that the statutory criteria for Richard's continued commitment were met. See R.F., supra, 217 N.J. at 175.

The State's experts, who were not rebutted by any other experts, confirmed that Richard continues to suffer from mental abnormalities, including pedophilia, substance abuse, and antisocial personality disorder, which pose a high risk of future sexual violence if Richard were released. Although Richard denied all but one of the incidents that form the basis of his sexually violent history, we are in accord with Judge Pursel that the experts permissibly relied upon these events to form the basis of their opinions. See N.J.R.E. 703.

Moreover, the record is replete with evidence of Richard's extreme resistance to treatment. Because of his overall uncooperative attitude, Richard has not even advanced past phase two at the STU after nearly twelve years of commitment, and both experts opined that Richard demonstrated minimal treatment knowledge without attaining any of the crucial elements he needs.

We are satisfied that Judge Pursel made no clear mistakes in continuing the commitment of Richard. See R.F., supra, 217 N.J. at 175. We are convinced that the State demonstrated clearly and convincingly that Richard requires continued involuntary commitment as a sexually violent predator. See N.J.S.A. 30:4-27.32(a).

Affirmed.

1 We use a pseudonym to protect the privacy of the committed individual and his victims.

2 Additionally, according to the records of various treatment facilities, Richard allegedly had sexual intercourse with his ten-year-old sister on at least seven occasions when he was eleven years old and fondled his three-year-old half-sister. In 1993, Richard reportedly fondled two teenage cousins and was accused of sexually molesting two female classmates. He was also accused sodomizing his sixty-nine year old grandmother in 1994, which he denied, but admitted touching her breasts.

3 The record does not contain a disposition of this allegation.

4 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the arguments raised by Richard based upon the presentation at oral argument.