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

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NOT FOR PUBLICATION WITHOUT THE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 S.A.,

SVP-553-10.

_________________________________

Argued May 13, 2014 Decided May 28, 2014

Before Judges Sabatino and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-553-10.

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

Stephen Slocum, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

Appellant S.A., who has been classified as a sexually violent predator under the Sexual Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, is presently civilly committed to the State's special treatment unit ("STU") for such persons. He appeals from an order dated October 18, 2013, continuing his commitment after a periodic review hearing. We affirm.

The record furnished to us reveals the following relevant background, which includes appellant's commission of multiple sexual and other offenses, both as a juvenile and as an adult.1

Appellant's first reported sexual offense occurred while he was a juvenile on or about September 27, 2004. On that day, a female senior corrections officer at the New Jersey Training School in Jamesburg reported that, as she was monitoring residents who were cleaning their dormitory, she felt a hand rub her buttocks. When she turned around, she observed appellant directly behind her. She then grabbed his hand and told him never to do that again. Appellant apologized to her and claimed that it was an accident. Approximately sixty minutes after this occurred, the corrections officer went to answer the telephone, and appellant grabbed her buttocks very firmly. The officer then reported the incident.

Appellant was arrested for this juvenile offense and charged as a juvenile with criminal sexual contact, N.J.S.A. 2C:14-3(b). He was found guilty in delinquency proceedings and sentenced to an indeterminate term not to exceed twenty-nine days.

The next reported offense occurred on or about July 2, 1999. That day, Q.L. reported to the Paterson Police Department that two boys, who lived at her address, had sexually abused her four-year-old daughter, T.L., by putting their penises in T.L.'s mouth. The police subsequently interviewed R.H. (age eight) who relayed that earlier in the day, he had been on the first floor where the little girl lived. His brother, appellant (then age twelve), and J.J. (age nine) were also there. R.H. stated that appellant and J.J. were telling him to "do it to her." When R.H. declined, J.J. put his penis into the child's mouth. T.L. was sitting on the bed at the time, and J.J. was standing up. After J.J. removed his penis from T.L.'s mouth, he and R.H. left the apartment, leaving appellant alone with T.L. R.H. further relayed that he did not see appellant do anything to T.L. and that he told the girl's mother about the incident later in the day.

Appellant was subsequently interviewed, and he initially stated that he did not do anything to T.L. However, when the police advised him that they were going to the hospital to speak to T.L., he admitted that he had placed his penis in her mouth. T.L. was also interviewed, and she stated that she had been lying on the bed in her room when the boys woke her up and put "their things" in her mouth. She clarified that the boys were appellant and J.J.

Thereafter, appellant was arrested and charged as a juvenile with aggravated sexual assault, N.J.S.A. 2C:14-2(a) and sexual assault, N.J.S.A. 2C:14-2(b). He was found guilty of the juvenile equivalent of sexual assault on February 14, 2002, and sentenced to one year of probation.

Appellant also has numerous non-sexual juvenile offenses. Those offenses include theft by extortion, robbery, distributing controlled dangerous substances, and aggravated assault.

The predicate offense that led to appellant's present commitment under the SVPA occurred in 2005. On or about September 29, 2005, L.A. (age sixteen) reported that she had been a victim of sexual abuse involving several individuals including her brother, appellant. She relayed that appellant had entered her room sometime in August 2005 and attempted to have vaginal intercourse with her. When she told him, "it hurts," he then had anal sex with her and ejaculated on her leg and the bed sheets. When appellant was interviewed, he admitted that he had anal sex with her and masturbated until he ejaculated.

Appellant was subsequently arrested and charged with aggravated sexual assault, N.J.S.A. 2C:14-2(a) sexual assault, N.J.S.A. 2C:14-2(b); aggravated sexual contact, N.J.S.A. 2C:14-3(a); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On March 7, 2007, appellant pled guilty in the Law Division to endangering the welfare of a child. He was sentenced on June 5, 2007 to five years in prison. He is also subject to parole supervision for life, pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -19.

A commitment hearing under the SVPA was held before Judge Philip M. Freedman on October 17, 2013. Pogos Voskanian, M.D., was qualified as an expert in psychiatry and testified on behalf of the State.

Dr. Voskanian testified that he had attempted to interview appellant before the hearing. However, appellant refused to speak to him and walked out of the room. Dr. Voskanian had previously interviewed appellant in April 2012. Despite appellant's most recent refusal to meet with Dr. Voskanian, the psychiatrist testified that he was still able to render opinions about appellant's condition within a reasonable degree of psychiatric certainty. Dr. Voskanian explained that he had relied on a number of different source materials to create his written report, including a discovery file that contained legal documents and statements from appellant's victims, previously-created expert reports, and treatment records.

Regarding appellant's first juvenile offense, in which he forced a four-year-old-girl to perform oral sex, Dr. Voskanian found significant that appellant's accounts of that incident had differed from one interview to the next. When appellant was questioned by police, he admitted "that he had the child perform oral sex on him." In later interviews, appellant told some evaluators that his younger brother was not present during the episode, and he "denied telling his youngest brother to do it to the child." During Dr. Voskanian's April 2012 evaluation meeting with appellant, however, appellant denied committing the offense, and instead claimed that he saw his brother molest the child and then "threw him out."

Dr. Voskanian found it noteworthy that appellant had begun offending at such a young age, because it indicated "a very poor prognostic sign and deeper sexual pathology." He opined that appellant "has serious difficulty appreciating his circumstances," meaning that appellant "may not really appreciate wrongfulness of molesting a child, raping his sister, grabbing buttocks of [a] correctional officer. He offends without appreciation of limits of boundaries."

Dr. Voskanian further indicated that appellant had "been diagnosed with borderline intellectual functioning" and had a "history of lead poisoning." These cognitive impairments signified to Dr. Voskanian that appellant might

not appreciate that what he is doing may not be appropriate. And if he's aroused in general and he can get aroused to a four[-] year[-]old, or his own sister, or correctional officer during, you know, their duties, he goes for it. He has it seems like there's a component of impulsivity, but also not being able to see that this is something that he should not really do. And, in addition to sexual offenses he also has extensive history of juvenile records and multiple offenses. Like he he was not containable.

Dr. Voskanian also found appellant's 2004 offense against the corrections officer to be significant, because that event showed "extremely poor judgment and inability to appreciate the consequences of the behavior and inability to refrain from acting on sexual impulses and urges." Despite several witnesses who had observed the incident firsthand and who had corroborated the corrections officer's version of events, appellant continually denied that it had occurred. On one occasion, appellant claimed that he had been pushed against the officer. On another occasion, he claimed that she had bumped into him.

Additionally, Dr. Voskanian noted that appellant had committed several other infractions within prisons and institutions, such as masturbating, exposing his penis to a female corrections officer, unauthorized physical contact, assault, abusive language towards staff, and failure to follow safety rules. When appellant was asked about exposing himself to the female officer, he claimed that his penis had fallen out of his pants while he was adjusting himself.

As to the 2005 predicate offense, in which appellant had sexually assaulted his sister, Dr. Voskanian testified that the episode showed a "lack of appreciation of boundaries." According to the psychiatrist, despite suffering the consequences for his repeated offenses, appellant "still continues to act . . . inappropriately and is unable to refrain from containing his sexual urges."

Dr. Voskanian also found it significant that appellant's victims varied so widely in age. This variation in ages indicated that it was "irrelevant" to appellant who his victim was, "as long as he can have his sexual gratification." Dr. Voskanian further noted that although appellant admitted to assaulting his sister, he had denied that anal penetration had occurred.

Dr. Voskanian determined that, despite his treatment within the STU, appellant still had not "developed any insight into his offenses. He continues to deny what took place, providing different justifying versions." According to Dr. Voskanian, appellant's frequent denial of his sexual offenses was "consistent with his level of intelligence. He's like in a childlike manner."

Dr. Voskanian stressed that it is important that appellant eventually learn to admit what he has done in order to "learn to contain" his inappropriate behaviors. Dr. Voskanian further noted that appellant displayed a complete lack of remorse or empathy towards his victims. The expert testified that appellant has exhibited "a very high sexual drive," and that therefore appellant needed to begin addressing his past behaviors "in order to be able to contain himself and learn some strategies to control his behavior."

Dr. Voskanian also cited the appellant's use of alcohol, marijuana, and PCP. Appellant claimed that he was "smoking PCP" when the 2005 assault on his sister occurred. The psychiatrist testified that appellant had "just started" addressing his substance abuse problem within the STU, noting that appellant had attended one or two modules.

Based upon his professional assessment, Dr. Voskanian concluded that there was "no progress . . . so far" in appellant's sex offender specific treatment. He elaborated as follows:

He has not discussed his sexual assault cycle. He denies all of his offenses. He does not remember raping her even though he acknowledges he takes responsibility for it because he does not believe that his sister would lie about this event. This is as per Multi-Disciplinary Treatment Team on the 8th of November 8, 2012.

So, that's not even a small progress. That's standstill. No understanding of relapse prevention principles. And he he would not be expected to have any understanding of that if he does not admit to his sexual history, behaviors, pathology. Then why does he need relapse prevention if there's nothing to relapse?

He does say that what he did was wrong, as per treatment providers. To me he did not appear with any emotional content regarding victims. No nothing at all. No empathy. So, to answer your question regarding progress as far as in sex offender treatment he's the ice has not cracked. He didn't move anywhere.

Dr. Voskanian diagnosed appellant with polysubstance dependence, learning disabilities, conduct disorder, and attention deficit hyperactive disorder. Although he was unsure regarding a possible paraphilia diagnosis, Dr. Voskanian opined that it was "clear" that appellant suffered from antisocial personality disorder. He noted that appellant's wayward conduct had been a problem since he was very young, describing appellant's lack of empathy and remorse as "profound."

Given these findings, Dr. Voskanian concluded that appellant "remains at high risk" to reoffend sexually unless his confinement continued. The expert based this assessment principally on:

[t]he Polysubstance Dependence; very poor insight into sexual pathology; broad pool of victims; no insight; no progress in treatment, so far, as . . . it relates to sexual offending; the lack of empathy; antisocial characterologic style. Cognitive limitations, as well, I believe here contribute to his difficulty appreciating the wrongfulness of his conduct. And and if he does not really not just verbalize I did wrong or something if if he does not appreciate that what he has done is wrong, a sense that what he has done is wrong, he's more than likely and highly likely to do the same.

On cross-examination, appellant's trial counsel represented that appellant had recently made certain admissions about his crimes. Dr. Voskanian acknowledged that this development did "represent [a] small amount of progress."

Dr. Christine Zavalis also testified on behalf of the State, and she was qualified as an expert psychologist. Dr. Zavalis was a member of the Treatment Progress Review Committee ("TPRC") within the STU, which had last met to review appellant's progress on March 5, 2013. A report was generated after the TPRC meeting by another psychologist in the STU, Dr. Hemisha Patel. Because Dr. Patel was not available to testify at the October 2013 hearing, Dr. Zavalis reviewed the TPRC report in full in preparation for her testimony.

Dr. Zavalis explained that the TPRC makes its recommendations after reviewing past legal documentation, psychological reports, psychiatric notes, treatment notes, and daily progress notes. In this particular case, the TPRC had also interviewed appellant. According to Dr. Zavalis, the TPRC's March 2013 review of the records and interview with appellant reflected that:

there did appear to be some some improvement closer to the review. So, he was described earlier in the review as being passive, polite and compliant, but quiet. He would listen to feedback. There were some behavioral issues and inappropriate affect. You know, he would smile or laugh inappropriately. He could be sarcastic and disrespectful. But when he was confronted about that behavior he would apologize or he would try to adjust it a little bit. So, there was compliance at least at that level.

There were times when he appeared kind of uninterested and bored in group but then when he was prompted he would give feedback that that seemed to indicate that he was listening.

I think so, there were both positives and negatives. For example, he had, at that point, continued to give inconsistent versions of his offenses, denying, minimizing, claiming he couldn't remember certain aspects, but he had also been enrolling in modules.

Dr. Zavalis found noteworthy that during that same time period, appellant's knowledge of specific issues relating to his sex offenses "seemed to be lacking." She observed that it was "difficult to be able to develop that knowledge when someone is denying the majority of their offending behavior, if not all of it."

During the TPRC's fifty-five-minute interview with appellant, Dr. Zavalis personally observed his clinical presentation was "maybe a little bit higher" than the diagnosis of borderline intellectual functioning. She noted that "the provocative sexual language [that appellant] used to describe sexual acts or his fantasies . . . kind of stood out." She recalled that appellant had been "somewhat sarcastic" with his interviewer. She also recalled that the "most striking" aspect of his interview "was his description of the offenses and how inconsistent and the level of denial involved in . . . his description of those offenses."

Dr. Zavalis noted that appellant had scored a 31.6 on the Hare psychopathy checklist during a 2011 examination, exceeding the threshold score of 30 that is indicative of psychopathy. Dr. Zavalis also testified that appellant had scored a seven on the Static-99R, which "places him in the high risk category." Dr. Zavalis stated that because of appellant's high scores, "it means that we have to proceed with caution in in evaluating his engagement in treatment." She emphasized that appellant had given inconsistent versions of his offenses "based on what he thinks he should say or what other people want to hear." Therefore, the TPRC "need[s] to see consistency on his part. . . . [A]nd we probably need a longer period of consistency than we may need to see with someone who does not have that high of a PCLR score."

On cross-examination, Dr. Zavalis did agree that appellant had done "well" in his relapse prevention module. However, she noted that appellant still needed "more work on differentiating between feeling behaviors concept in order to comprehend his own sexually deviant cycle . . . when he reaches [r]elapse [p]revention [phase] 1B."

Appellant did not testify at his hearing. He did not present any expert or other witnesses.

Judge Freedman's oral decision was issued on October 17, 2013. The judge credited the testimony of Dr. Voskanian and that expert's finding that appellant suffered from polysubstance dependence. The judge also found that appellant "certainly and clearly has Antisocial Personality Disorder."

The judge concluded that appellant "meets the standard for commitability." Specifically, the judge determined that:

Based on his history these conditions, particularly the Antisocial Personality Disorder, predispose him to engage in acts of sexual violence. I am satisfied that they affect him cognitively, emotionally, and volitionally, particularly volitionally, to such a degree that he is predisposed and that if he were and if he were released would have serious difficulty controlling his sexually violent behavior and would be highly likely, within the reasonably foreseeable future, to engage in acts of sexual violence.

The judge did acknowledge that appellant was engaging in treatment, and that he might be conditionally discharged at some point in the future if he remained on a positive trajectory. Even so, the judge found by clear and convincing evidence that appellant's commitment should be continued. Appellant's next review date was scheduled for October 6, 2014.

In the present appeal,2 appellant contends that the October 2013 order continuing his commitment should be reversed, essentially because he was progressing in his treatment during the most recent review period, and that he has not repeated at the STU the kinds of institutional infractions that he had committed while he was a juvenile at Jamesburg. Appellant disagrees with the conclusions of the State's experts and the trial judge that he is presently likely to reoffend if released. These arguments are unpersuasive.

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., 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 hearing the commitment case must address an individual's "serious difficulty in controlling sexually harmful behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 132-33; see also 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 has to 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).

As the Supreme Court reaffirmed earlier this year in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal 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)).

Accordingly, the Supreme Court has instructed that 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 principles here, we affirm the order directing appellant's continued commitment, substantially for the cogent reasons set forth by Judge Freedman in his oral decision of October 17, 2013. There is substantial credible evidence in the record, including the expert opinions of Dr. Voskanian and the TPRC doctors, to support the trial court's findings.

Although appellant has not been diagnosed with paraphilia, that particular diagnosis is not required under the statute to establish a mental abnormality. Appellant's confirmed diagnosis of antisocial personality disorder can suffice. See W.Z., supra, 173 N.J. at 129 ("the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'"). Moreover, apart from the qualifying diagnosis, the record contains ample indicia of high risk of reoffense, including, but not limited to, appellant's high static 99 score, his lack of empathy and remorse concerning his offenses, and his limited progress in therapy, all of which support the trial court's decision.

Affirmed.

1 Appellant is presently age twenty-seven.

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