IN THE MATTER OF THE CIVIL COMMITMENT OF A.T.B.

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NOT FOR PUBLICATION WITHOUT THE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.T.B., SVP-294-02

_________________________________

May 27, 2014

Argued May 13, 2014 - Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-294-02.

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

Eric James Lucadamo, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

A.T.B.1 appeals from an order entered on October 4, 2013, continuing his civil commitment to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

The general background concerning appellant's sexual offense history is set forth in detail in this court's 2005 unpublished opinion upholding his commitment under the standards of the SVPA. See In the Matter of the Civil Commitment of A.T.B., Nos. A-3693-02, A-2714-03, (App. Div. Dec. 5, 2005) (slip op. at 2-6). We repeat for ease of reference that prior recitation of appellant's sexual misconduct, which includes forcing a young boy to perform oral sex, sexually assaulting a young woman in a shopping mall, and sexually assaulting a female robbery victim:

The facts underlying A.T.B.'s commitment are offensive. A.T.B.'s history of sexual misconduct commenced at age ten, when he and another juvenile, physically threatened and forced a young boy to perform oral sex upon them. A.T.B. was arrested and adjudicated a juvenile delinquent after pleading guilty to a charge, which if committed by an adult, would have constituted aggravated sexual assault.

On January 27, 1987, A.T.B. pulled a fourteen year old girl into a stairwell at a shopping mall, punched her, and threw her to the ground. During the assault, A.T.B. told the girl that he had a knife. Although the girl fought A.T.B., he was able to grab her head and force her to fellate him. A.T.B. then pulled up her shirt, pulled down her pants and commenced to run his penis on the girl's vaginal area. A.T.B. told the girl that he would let her go if she would fellate him again, and when she refused, A.T.B. forced her to fellate him a second time. When leaving the scene, A.T.B. stated that if she told anyone what happened, he would "slice [her] up." A.T.B. was arrested that day. On February 18, 1987, he pled guilty to a charge, which if committed by an adult, would have constituted sexual assault. In March 1987, A.T.B. was sentenced to an indeterminate term not to exceed three years, to be served at the Training School for Boys at Jamesburg.

On May 24, 1992, A.T.B. was arrested and charged with possession of a controlled dangerous substance with intent to distribute. On June 30, 1992, he was arrested and charged with aggravated assault as well as weapons charges and hindering apprehension. On November 6, 1992, he pled guilty to the drug charge and was sentenced to three years in prison. On the same day he pled guilty to aggravated assault and was sentenced to eighteen months, concurrent with the three-year sentence on the drug conviction.

The predicate offense under the SVPA occurred on October 5, 1994, when A.T.B., age twenty-one, and two other males robbed and sexually assaulted a twenty-four year old female outside a hotel. One of the other males told the victim that he had a gun, demanded that the female turn over all of her money to him; and if not, that he would use the gun. A.T.B. told the girl: "Bitches like you make me want to piss on." The victim was forced to get down on her knees, at which time one of the two other males urinated on her face. A.T.B. then demanded that the victim fellate him. The victim was forced to fellate all three men, after which A.T.B. urinated in her face, and the group walked away laughing. On October 5, 1994, A.T.B. was arrested and charged with conspiracy to commit aggravated sexual assault; conspiracy to commit robbery; two counts of aggravated sexual assault; and two counts of robbery.

In the interim, on January 8, 1995, A.T.B. was arrested and charged with various weapons offenses. On January 25, 1995, he was arrested and charged with robbery. On March 6, 1995, A.T.B. was arrested by U.S. Marshals and charged with conspiracy to possess a controlled dangerous substance with intent to distribute. On November 6, 1995, he pled guilty to the federal charges, and on December 11, 1996, was sentenced to 108 months in the U.S. Bureau of Prisons.

[In re Civil Commitment of A.T.B., supra, slip op. at 2-4.]

Appellant's initial SVPA commitment hearing was held in January 2003. Id. at 7. After two days of hearings, the trial court entered an initial commitment order, which appellant appealed. Id. at 12. While appellant's appeal of the initial commitment order was pending, his one-year review hearing was conducted in January 2004. Ibid. The trial court again concluded that the State had produced clear and convincing evidence that appellant continued to be a sexually violent predator in need of treatment. Id. at 15. Appellant again appealed.

On December 5, 2005, this court issued a consolidated opinion, affirming both the trial court's February 13, 2003 order finding appellant to be a sexually violent predator and committing him to the STU, and a January 14, 2004 order continuing his involuntary civil commitment. Id. at 1-2, 25.

Subsequently, the trial court entered an order dismissing the case without prejudice on or about May 23, 2006, because appellant had been sentenced to a seven-year term in prison with a three-year period of parole ineligibility, after being convicted of aggravated assault on a male corrections officer.

In June 2010, in anticipation of appellant completing his prison sentence on the aggravated assault, the State filed a new petition seeking his civil commitment pursuant to the SVPA. The trial court consequently authorized appellant's transfer to the STU, pending a final hearing. At that final hearing on October 7, 2010, the court found that appellant was a sexually violent predator, and ordered that he be remanded to the STU.

Review hearings were held on October 14, 2011; October 3, 2012; and October 4, 2013, all resulting in appellant's continued commitment.

Pogos Voskanian, M.D., was certified as an expert in psychiatry and testified on behalf of the State at the most recent commitment hearing. Dr. Voskanian stated that he had conducted an examination of appellant on September 11, 2013 which lasted for approximately one hour. After the examination, the psychiatrist prepared a forty-page report, which was admitted into evidence during the hearing.

In his report, Dr. Voskanian concluded that appellant "has not mitigated his risk factors and remains at high risk for sexually violent recidivism." Specifically, Dr. Voskanian found that appellant met the criteria for paraphilia, NOS (not otherwise specified); r/o (rule out) sexual sadism; alcohol abuse in a controlled environment; marijuana abuse in a controlled environment; r/o polysubstance dependence; and antisocial personality disorder. Dr. Voskanian determined that these conditions "qualify [appellant] as having mental abnormality and personality disorder that place him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

When questioned at the hearing about appellant's "overall mental status and level of intelligence," Dr. Voskanian stated that appellant "is not quite connected . . . in the sense of being able to assess and appreciate the impact of his behavior on others." Dr. Voskanian found appellant's lengthy sexual violence history to be significant for several reasons. He stated:

Offenses start offending behavior starts at a very young age. There are in two of three cases there are accomplices. There is a considerable degree of violence. There is a need for humiliation. Offenses can be committed anywhere, include all of them are in public places. On the side of the building, in the mall, and in the church. So, being in a public place did not stop [A.T.B.] from doing whatever he was doing.

He continued to commit one offense after another, despite suffering legal consequences. So, prior to his predicate offense he was already found guilty on sexual offense charges, aggravated sexual assaults on two occasions. Nevertheless, he committed similar offense and took it [a] step further by degree of violence that he displayed to this victim. . . . I'm talking about the 24-year-old woman.

Dr. Voskanian also found it noteworthy that appellant's violent behaviors had started at a young age. According to Dr. Voskanian, this early involvement indicated "that the pathology is severe, and it is supported by the fact that . . . he repeated these offenses and increasingly got more violent and more sadistic." With respect to appellant's extensive non-sexual offending history, Dr. Voskanian stated that such non-sexual crimes showed appellant's "complete disregard for consequences of behavior, disregard for the law."

Dr. Voskanian noted that the 1987 incident involving appellant's sexual assault of a fourteen-year-old girl in a mall stairwell, which occurred within just two days of appellant leaving a program required by his juvenile sentencing, showed that "whenever [appellant] has access to [a] potential victim in the community he is going to act on it. He has not been able to contain his urges when he has access to [the] appropriate victim."

As to the 1994 predicate offense under the statute, Dr. Voskanian testified that:

[T]hat is the worst offense. That is the most violent offense. He degrades this victim. He he denies that he had a gun. He denies robbing the victim. He denies taking any money from the victim. He denies violence. He during earlier interviews he did and, partially during the current interview he did admit that humiliation was, in a sense, arousing. However, that humiliation arousal axis, he's taking it out and he says he did it just for laughs. Urinating on the victim's face while she continued to provide oral sex to one of his peers.

When and, he says it with an affect that is completely void of any empathy or remorse. He says, "We did it for laughs. It's a funny thing." So, if it's not for humiliation and, the best he can come in a to justify this behavior as humiliating somebody by urinating on their head is for is [a] very laughable thing and it's a good joke. That speaks about the imagination of the person and what is humorous to him.

Despite his guilty plea to this forced sexual assault, appellant maintained in his interview with Dr. Voskanian that the encounter had been purely consensual. According to appellant, there was "[n]o violence. No robbery. No handgun. No robbing the victim. Offered $50 for oral sex on three people. She agreed. She went there by herself." Dr. Voskanian explained that appellant had offered these differing versions of events during his interview because:

he's a smart person and he wants to present his case in a legal terms and this has been an issue. Instead of addressing his sexual pathology and trying to make a progress he is preferring to present sanitized version[s] of his offense all his offenses. First one, he doesn't remember. Second one, sanitized. And this last one . . . is also significantly I mean, totally sanitized description of things. With the exception that [the] victim was upset he says because we didn't agree about that urination part.

Dr. Voskanian opined that it was important for appellant to honestly address the crimes he had committed because of their violent, degrading nature. The psychiatrist noted that "in order to be able to deal . . . with his sexual pathology he needs to openly address all those issues."

With regard to appellant's progress with treatment at the STU, Dr. Voskanian testified that appellant "was promoted to Phase 3A.[2] So, there is some progress that needs to be acknowledged in that over the past year there was no significant violent episode." However, Dr. Voskanian also pointed out that appellant had recently been caught attempting to order and transport contraband into the facility.

Addressing his diagnosis of appellant's alcohol and marijuana abuse, Dr. Voskanian stated that these habits were relevant because "these are substances that impair impulse judgment and impair impulse . . . control. So, . . . for a person with a sexual disorder they are likely to be . . . exercising less judgment and be much more impulsive. So, it would elevate the risk."

Dr. Voskanian further testified that he had diagnosed appellant with paraphilia because:

there is a history of three convictions, one aggravated sexual assault, which involved non-consensual victims, considerable force, humiliation. And, [A.T.B.], at least in part, admitting that he enjoyed the empowerment and being in in control of the situation and even deriving pleasure for humiliating the victim. Therefore, it is [a] clear diagnosis to me.

He knew legal consequences. He reoffended despite suffering legal consequences and within relatively short period of time, each time.

Finally, Dr. Voskanian testified that appellant possessed a number of characteristics typical of antisocial personality disorder, such as a lack of empathy, a disregard for the rights of others, manipulation of others, and a failure to own up to past bad behaviors.

Given these characteristics and findings, Dr. Voskanian concluded that appellant "remains at high risk" to sexually reoffend in the foreseeable future.

The State's second witness, Paul Dudek, Ph.D., was qualified as an expert in psychology. As a member of the Treatment Progress Review Committee ("TPRC") within the STU, Dr. Dudek had an opportunity to review appellant's progress and treatment, and also to conduct in-person interviews with appellant. The last such meeting and interview prior to the hearing was held in August 2013. Following that session, Dr. Dudek submitted a report on behalf of the TPRC, which was entered into evidence. Dr. Dudek testified about the contents of the report at the hearing.

According to Dr. Dudek, the TPRC had recommended and arranged that appellant be moved to Phase 3A3 of the treatment program because he "has been doing reasonably well in light of the the overall course of treatment." In his first process group, appellant "was seen as a fairly active member. . . . [He] took the role of prompting other people to to not only engage their own treatment process but also to try to encourage them to confront him on his own . . . behaviors, his own cognitive maladaptations." When appellant was changed to a new process group, he appeared to:

find it a more positive group, much more oriented towards the treatment process. And seemed to be more in sync with where he was in terms of his own treatment trajectory. There he's also continued to participate quite actively, to attend quite regularly and appears to . . . be attempting to use the treatment process.

Despite these somewhat positive steps, Dr. Dudek did note that appellant's treatment faced "a significant barrier" during the period he was incarcerated for assaulting a corrections officer.

According to Dr. Dudek, "one of the important aspect[s] in the course of this interview had a lot to do with [appellant's] view of women." Dr. Dudek noted that appellant appeared to have grown up in an environment where "women outside the family were not really due any sense of real respect."

Dr. Dudek also noted that appellant's discussion of his past sex life and current sexual fantasies often centered around "a sense of belligerence[,] . . . even in the most consensual sexual encounters. Predominantly a lot of verbal aggression while receiving oral sex[.] . . . And that the . . . verbal aggressiveness would decrease once he's engaged in vaginal intercourse."

Dr. Dudek and the other members of the TPRC specifically declined to elevate appellant to Phase 4 of treatment because, as Dr. Dudek explained:

At this point [appellant] certainly requires a significant amount of treatment in terms of understanding of his own offense cycle and the . . . cognitive and behavioral and emotional correlates to that trigger his offenses. He's beginning to understand, certainly, the role of his anger. . . .

But, certainly, he still needs to address the issues related to deviant arousal, the hostility towards women, the social relationships which have been predominantly with those people who are permissive towards antisocial behavior being some of the key issues for him to still for him to know and address and resolve.

Like Dr. Voskanian, Dr. Dudek also diagnosed appellant with paraphilia because all of his offenses included "non-consent." Dr. Dudek made several recommendations, including (1) that appellant continue his active engagement with his process group; (2) that appellant attempt to discern the underlying causes of his behaviors; and (3) that appellant work towards the rest of the series of the relapse prevention modules.

Dr. Dudek concluded that appellant "would be highly likely to reoffend." However, the psychologist did note that appellant was "[i]n a definite positive trajectory at this point."

Christopher Lorah, Ph.D., an expert in psychology, testified at the hearing on behalf of appellant. Dr. Lorah testified to the contents of his own expert report. He noted that during their interview, appellant "took responsibility for his sexual offenses," although he added that appellant's account of his offenses was largely consistent with the account he had given to Dr. Voskanian. When questioned by Dr. Lorah about what he had learned during his treatment, appellant reportedly "demonstrated a knowledge of his offense cycle."

Dr. Lorah perceived that appellant had "made significant progress since his redirection with the STU." Dr. Lorah declined to diagnose appellant with paraphilia because he "ha[d] not identified any recurrent fantasies involving nonconsensual interactions." The expert surmised that appellant preferred his sexual encounters to be consensual, and resorted to violence only if his partner protested.

Dr. Lorah concluded that appellant's "sex offense and substance abuse therapeutic needs can be adequately and . . . effectively met in the community." The expert found that an antisocial personality disorder diagnosis better explained appellant's behavior than a paraphilia diagnosis, noting that the predictive ability of antisocial personality disorder in terms of the risk of reoffending was "much more influential in non-sexual crimes." However, on cross-examination, Dr. Lorah acknowledged that "there is risk for sexual aggression here. Absolutely."

After considering these expert and other proofs, the trial judge found Dr. Voskanian's "testimony to be very credible in terms of his interest, demeanor. Very forthright, very knowledgeable, a very comprehensive report." The judge similarly found Dr. Dudek's testimony to be "extremely credible."

Although the judge found Dr. Lorah generally to be credible as well, the judge specifically "d[id] not agree" with Dr. Lorah's conclusion that appellant was not highly likely to reoffend. Instead, the judge found it "clear" from the other expert testimony that appellant had paraphilia, and that he was "predisposed to sexual violence." The judge recognized that appellant was "doing better but he's still highly likely to sexually reoffend, but he's on a positive trajectory."

Having thus found the State's two experts more persuasive than appellant's expert, the judge concluded that the State had met its burden of proving by clear and convincing evidence that A.T.B. "presently is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment." Appellant's next review date was scheduled for September 25, 2014. This appeal followed.4

Appellant contends that the trial court erred in finding that he currently suffers from a mental abnormality that makes him likely to engage in an act of sexual violence if his commitment at the STU is not continued. Appellant further argues that the court erred in concluding that his sexual proclivities have not been adequately mitigated through his treatment. We reject these contentions.

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., 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," 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 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).

As the Supreme Court recently emphasized 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)).

For these sound reasons, the Supreme Court has directed 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 deferential principles here, we affirm the order directing appellant's continued commitment, substantially for the cogent reasons set forth by Judge James F. Mulvihill in his oral decision on October 4, 2013 at the conclusion of the hearing. There is substantial credible evidence in the record, including the expert testimony of Dr. Voskanian and Dr. Dudek, to support Judge Mulvihill's conclusion that the statutory criteria for appellant's commitment continue to be met.

The State's experts confirmed that appellant continues to suffer from mental abnormalities, including paraphilia and antisocial personality disorder, that pose a high risk of future sexual violence if appellant were released. Although appellant's expert, Dr. Lorah, disagreed with the diagnosis of paraphilia and opined that appellant's therapeutic needs can be adequately met in the community, the judge was free to reject that competing opinion and instead adopt the more guarded assessments of the State's two experts. R.F., supra, 217 N.J. at 174 (noting that SVPA judges are not required to accept all or part of a particular expert's opinions). Indeed, Dr. Lorah conceded on cross-examination that appellant continued to pose a risk of re-offense; the judge was certainly entitled to conclude that Dr. Lorah had underestimated the degree of that risk.

We are mindful that the record shows that appellant has made some progress in his treatment within the STU. Even so, the State's experts cautioned that appellant continues to exhibit poor insights concerning his behaviors and to have anger issues that need further attention. As we have also noted, the TPRC declined to advance appellant to Phase 4 of treatment because of these and other unresolved issues. Although we appreciate the argument of appellant's counsel that the phases of treatment within the STU should not be rigidly administered as an institutional "checklist," there are clearly ample grounds to support the trial judge's conclusion that appellant presently remains "highly likely" to reoffend.

Affirmed.

1 For reasons that are unclear, appellant's middle initial has been omitted from some of the papers filed in the present appeal.

2 Phase 3A, as described by another State witness, is considered to be:

the core element of the treatment process where an individual is working towards identifying the offense cycle, such as looking at patterns of arousal that were involved, cognitive and emotional permissiveness towards offending. Working toward building relapse prevention strategies, identifying the needs and how they have attempted to meet their needs non-adaptively and adaptively during the course of their lives.

3 Counsel explained to us at oral argument that the STU recently began dividing Phase 3 into two designations: Phase 3A (for persons not within the "treatment community") and Phase 3B (for persons within the "treatment community").

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 appellant based upon the presentation at oral argument.