IN THE MATTER OF THE CIVIL COMMITMENT OF A.H.

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NOT FOR PUBLICATION WITHOUT THE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 A.H. SVP-566-10

________________________________

August 14, 2014

Submitted July 1, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-566-10.

Joseph E. Krakora, Public Defender, attorney for appellant A.H. (Alison Perrone, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

A.H. appeals from the October 4, 2010 order civilly committing him to the Special Treatment Unit (STU), New Jersey's secure facility for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. A.H. argues that the State failed to prove by clear and convincing evidence that he was subject to SVP commitment, and that the trial court erred in allowing testimony about two diagnostic tests. Having reviewed the record and considered the arguments, we affirm.

A.H. is twenty-three years old and was civilly committed to the STU in April 2010. Although A.H. is only twenty-three, he has a long history of sexual misconduct.

On January 28, 2006, A.H., then fifteen years old, coerced ten-year old K.G. to put his hand down A.H.'s pants and touch his penis during a sleepover in K.G.'s basement. A.H. then put his hand down K.G.'s pants and fondled K.G's penis. The next day, K.G.'s father took the boys fishing, and while the boys were waiting in the car for K.G.'s father, A.H. again coerced K.G. to put his hand down A.H.'s pants and touch his penis, and then forcibly put his hand down K.G.'s pants and caressed K.G.'s penis. K.G. escaped from the car and ran away crying. Later that night, he told his parents what happened. On January 30, 2006, A.H. was arrested. These incidents occurred while A.H. was on probation for a previous sexual offense from 2005.

On February 23, 2005, A.H., fourteen years of age at the time, was babysitting his younger brother and two other boys, D.E., age four, and D.R., age five. A.H. placed his mouth on D.E.'s buttocks, masturbated D.E., and tried to have D.R. remove his pants. In June 2005, A.H. was adjudicated for delinquency based on third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. A.H. was sentenced to two years of probation, and ordered to attend counseling for relapse prevention training, victim empathy, and individual psychotherapy.

On May 2, 2006, A.H. was adjudicated delinquent in connection with the January 2006 incident, based on third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, and ordered to attend Pinelands Residential Community Home for treatment and counseling. A.H. attended the Pinelands program from May to November 2006, at which time he was terminated for non-compliance with the rules. Specifically, A.H. engaged in ongoing unacceptable sexual behavior, including compulsive masturbation, incidental sexual contact, exhibitionism, and inappropriate sexual contact with three different residents. In June 2006, A.H. was found masturbating in the bathroom of a psychiatrist's office, apparently because he saw a child in the waiting room who resembled one of his victims. While at Pinelands, A.H. disclosed numerous additional victims during treatment, and incurred twelve infractions. A.H. was then sent to the Middlesex County Detention Center.

On December 11, 2006, A.H. was again adjudicated delinquent and committed to the Juvenile Justice Commission for violation of probation in failing to complete the Pinelands program. A.H. pled guilty to the violation of probation, with one count of third degree aggravated criminal sexual contact and one count of third degree endangering the welfare of a child. A.H. was sentenced to a four year term. The court remanded A.H. to the Juvenile Justice Commission and sentenced A.H. to attend the New Jersey Training School for Boys in Jamesburg ("NJTS").

While incarcerated, A.H. was transferred from NJTS to the Juvenile Reception and Assessment Center ("JRAC") and then to the Juvenile Medium Security Facility ("JMSF"). The numerous transfers were a result of A.H.'s behavior with residents and staff, including sexual proposals, sexual threats of harm, and inappropriate gestures. A.H. also incurred numerous institutional infractions.

Immediately upon turning eighteen, the JJC transferred A.H. to the Department of Corrections for treatment at the Adult Diagnostic and Treatment Center ("ADTC") due to his history of sexually acting out while under supervision and within correctional institutions, his minimal investment in sex offender treatment, and poor institutional adjustment.

Prior to A.H.'s release from incarceration, the State petitioned for his commitment to the STU under the SVPA. An order of temporary civil commitment was entered on April 7, 2010, and the final hearing was held on August 31, 2010.

During the hearing, the court heard testimony from Dr. Alberto Goldwaser, a psychiatrist, and from Dr. Doreen Stanzione, a psychologist and a member of the Treatment Progress Review Committee (TPRC) at the STU. Dr. Barry Zakireh, a psychologist, testified on A.H.'s behalf.

According to both Dr. Goldwaser and Dr. Stanzione, A.H. suffers from pedophilia and antisocial personality disorder. Dr. Stanzione also gave a provisional diagnosis of dysthymic disorder.

Dr. Goldwaser interviewed A.H. on August 25, 2010 and prepared a report based on that evaluation, as well as upon his review of previous records. Dr. Goldwaser indicated that A.H. is not undergoing a full treatment program because he has not attended the orientation groups. He also stated that A.H. "does not want treatment[,] he does not accept treatment[,]" and he refers to his offenses "as a mistake not as a crime . . . ."

Dr. Goldwaser also stated that the combination of pedophilia and antisocial personality disorder puts A.H. at a high risk to reoffend because the two "work together to reduce inhibitions and certainly reduce adaptation to society." As a result, without treatment, A.H. would have serious difficulty controlling his behavior and would be highly likely to reoffend.

Dr. Stanzione, a staff clinical psychologist in the STU, also evaluated A.H. for the hearing, and testified that, without confinement to the STU and further treatment, A.H. was at a moderate to high risk of reoffending. Dr. Stanzione based her diagnosis on numerous cognitive evaluations and tests, including the Bumby Cognitive Distortion Scale, the STATIC-99R, and the Psychopathy Checklist-Revised.

Dr. Stanzione testified that A.H. agreed with the four out of thirty-six statements on the rape index of the Bumby Scale, including: "I believe that if a woman lets a man kiss her and touch her sexually, she should be willing to go all the way[,]" and "[b]efore the police investigate a woman's claim of rape, it's a good idea to find out what she was wearing, if she had been drinking, and what kind of person she is[.]"

Dr. Stanzione also noted that during her recent interview with A.H., he indicated that he masturbates fifteen to twenty-five times a day, and that he masturbates to the thought of individuals as young as twelve on a regular basis. A.H. also told Dr. Stanzione that he was attracted to people ages twelve, thirteen, and fourteen, as well as older individuals, up to forty years old. She noted that defendant has engaged in some treatment, including arousal reconditioning, but that he still has difficulty integrating the concepts.

Furthermore, both Dr. Goldwaser and Dr. Stanzione acknowledge that the Static-99R assessment results are to be "interpreted with caution" for juvenile offenders. Both doctors indicated that they did interpret the results with caution, and that they based their assessment of A.H.'s moderate to high risk to reoffend on other factors as well.

Defense counsel called Dr. Zakireh who evaluated A.H. on August 18, 2010 and prepared a report based on that evaluation. Dr. Zakireh disagreed with the diagnosis of pedophilia, stating that A.H. does not satisfy diagnostic criteria of the DSM-IV. He also disagreed with the antisocial personality disorder diagnosis. Dr. Zakireh believed that A.H. suffers from major depressive disorder, conduct disorder, and probable ADHD.

Following the conclusion of testimony, Judge McLaughlin found that State proved, by clear and convincing evidence, that A.H. was convicted of a sexually violent offense, that he suffers from an abnormality or personality disorder, and that the disorder causes A.H. serious difficulty in controlling his sexually harmful behavior such that it is highly likely he will reoffend in the foreseeable future.

Judge McLaughlin found that, in light of A.H.'s history of reoffending even while confined in facilities and receiving treatment, "it is highly likely that he will reoffend in the reasonably foreseeable future if not committed to a secure facility[.]" Therefore, the best option for providing the "concentrated and extensive treatment that [A.H.] needs . . . would be under the secure facilities for his care, treatment, and control" at the STU. This appeal followed.

Pursuant to the SVPA, 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 (emphasis added); 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).

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 Supreme Court recently reiterated that the question on appeal is whether there is "sufficient credible evidence in the record" to support the trial judge's findings. In re Civil Commitment of R.F., 217 N.J. 152, 157 (2014).

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 McLaughlin in his oral opinion of October 4, 2010.

Affirmed.