A-0IN THE MATTER OF THE CIVIL COMMITMENT OF L.K SVP-389-05.1

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NOT FOR PUBLICATION WITHOUT THE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 L.K., SVP-389-05.1

____________________________________________

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-389-05.

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

Cindi S. Collins, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

L.K. (Luke)2 appeals from the October 8, 2013 order continuing his civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The general background concerning Luke's sexual offense history is set forth in detail in this court's 2006 unpublished opinion continuing his commitment under the standards of the SVPA. See In re Civil Commitment of L.S.K., SVP-389-04, No. A-2270-05 (App. Div. June 14, 2006). Briefly, Luke's first sexual offense occurred in 1988 when he raped a fifteen-year-old girl. As a result, he was convicted of second-degree sexual assault in 1989 and sentenced to "an indeterminate term not to exceed ten years, to be served concurrently with a previously-imposed sentence for larceny."

Subsequently in 1995, Luke was indicted in Passaic County for three counts each of first-degree aggravated sexual assault, second-degree sexual assault, second-degree endangering the welfare of a child, and third-degree endangering the welfare of a child. Those charges arose out of numerous sexual acts committed against Luke's two nephews and one niece, who were all under the age of thirteen at the time of the offenses. As a result, Luke pled guilty in 1996 to one count of first-degree aggravated sexual assault and two counts of second-degree sexual assault. The judge sentenced Luke to an aggregate of twelve years confinement at the Adult Diagnostic and Treatment Center (ADTC), to be served consecutively to another sentence for a 1994 burglary and theft.

In 1998, Luke also pled guilty to endangering the welfare of a child. That charge had been included in a separate 1995 Hudson County indictment that also charged him with aggravated sexual assault, sexual assault, lewdness, and child abuse. Those charges stemmed from acts committed against another one of Luke's nephews when that child was between the ages of five and eight years old. In 1998, Luke was sentenced to a five-year term at the ADTC concurrently with the sentences for the Passaic County convictions.

On January 5, 2005, the State filed a petition to declare Luke a sexually violent predator pursuant to N.J.S.A. 30:4-27.28. A temporary order of commitment was entered on January 13, 2005, followed by an order of commitment on May 9, 2005.

Luke has had five review hearings resulting in his continued commitment prior to the hearing now on appeal. These hearings occurred on November 30, 2005, affirmed on appeal, L.S.K., supra, No. A-2270-05; November 8, 2006, affirmed on appeal, In re Civil Commitment of L.S.K., SVP-389-04, No. A-1800-06 (App. Div. April 10, 2007), certif. denied, 192 N.J. 71 (2007); November 2, 2007, affirmed on appeal, In re Civil Commitment of L.S.K., SVP-389-04, No. A-1494-07 (App. Div. May 22, 2008); October 8, 2008, no appeal taken; and September 28, 2011, affirmed on appeal, In re Civil Commitment of L.K., SVP-389-04, No. A-2687-11 (App. Div. April 16, 2012).

Judge John H. Pursel presided over Luke's sixth review hearing, the subject of this appeal, on October 8, 2013. The State presented testimony of Paul Dudek, Ph.D., who was qualified as an expert in psychology. The State also submitted into evidence, without objection, a thirty-four-page psychiatric evaluation of Luke by Pogos Voskanian, M.D. No other witness testified.

As a member of the STU's Treatment Progress Review Committee (TPRC), Dr. Dudek had an opportunity to review Luke's progress and treatment, and also to interview him. The last such 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 that when Luke discussed his progress in interviews, he relied on his internal experiences, and did not look towards external validation, such as his treatment phase level, which showed his tendency to deal with issues in their immediacy rather than address his long-term goals. Luke stated he was unable to fully understand why his anger translated into sexual offending, and recognized he needed to address this. Luke believed his sex offenses were a coping mechanism to deal with his anger.

Luke acknowledged to Dr. Dudek that he was sexually aroused by his female victims, but maintained that he was not aroused by his nephews. Luke asserted that he victimized his nephews out of anger directed at his sister, the children's mother, because she had sexually abused him between the ages of ten and thirteen. Dr. Dudek noted that Luke had only recently begun to admit to abusing his nephews. Luke maintained that he raped the fifteen-year-old girl because she rejected his advances and this made him angry, which was inconsistent with police reports. Dr. Dudek opined that Luke had a "wide range of arousal patterns, from adult woman [to] adult men, as well as teenage girls and . . . preadolescent boys," which suggested "a far-ranging deviant arousal pattern."

Luke denied to Dr. Dudek that he penetrated his nephews, arguing that there were no medical records proving such abuse. Luke also maintained that he was no longer aroused by teenaged girls, but could not explain how that arousal disappeared. He explained that he had been trying to view teenage girls "more as humans . . . as opposed to sex objects."

Dr. Dudek testified that Luke scored in the high range of 29 on the Hare Psychopathy Checklist, which showed that Luke had psychopathic traits such as lack of empathy, antisocial behavior, and a lack of concern for others while meeting his own needs, which was "highly maladaptive." Dr. Dudek also scored Luke at an 8 on the Static-99R actuarial test, which indicated he was in the high risk category of re-offense.

Dr. Dudek diagnosed Luke with pedophilia non-exclusive type, with attraction to both males and females; paraphilia NOS (not otherwise specified), provisional, non-consent; polysubstance dependence in a controlled environment; and antisocial personality disorder. The doctor explained that these disorders do not suddenly disappear; rather, they "tend to be longstanding, especially with any degree of reinforcement to the sexual behavior or masturbation." The doctor opined that Luke's polysubstance dependence increased his risk of re-offense as drugs and alcohol tend to diminish inhibitions and judgment with regard to antisocial behavior and deviant arousal patterns. Furthermore, Luke's antisocial personality disorder increased the likelihood that he would be willing to "violat[e] social norms to offend sexually."

With regard to Luke's treatment progress at the STU, Dr. Dudek testified that Luke was promoted in May 2012 to Phase 3A, "the core phase of treatment," where residents address the cognitive, behavioral, and emotional components related to their sex offending and develop relapse prevention strategies. The doctor noted that Luke had been making progress in treatment, specifically in the area of anger management, one of his "biggest hurdles," and he had been participating more in group therapy. The doctor testified that, eventually Luke could be a good candidate for the Therapeutic Community, a higher phase of treatment involving peer supervision, once he has "established a more well-rounded understanding of his sex-offending dynamics, . . . relapse prevention," and his "arousal patterns."

Dr. Dudek explained that much of the treatment focus in late 2012 related to Luke's Modified Activities Placement (MAP), due to his testing positive for marijuana. Luke argued throughout his MAP that he did not use marijuana, but rather tested positive as a result of second hand exposure from a peer or from a medication he was taking. The doctor noted Luke was "removed from MAP status in December 2012," he had been doing well in his substance abuse process group, and had been attending NA meetings.

Dr. Dudek stated that Luke had begun to understand his "initial motivations" for committing his original offenses, but he had some difficulty being able to understand his "longstanding patterns [of] belief and attitudes" that were permissive of his offending. The doctor opined that until Luke is able to identify what his "long-term more entrenched patterns are, he'll have difficulty modifying some of his behavior long term."

According to Dr. Dudek, Luke denied having any sexual urges, but admitted to masturbating to relieve the stress of being in the STU. The doctor stated, however, that Luke was assigned to the arousal reconditioning module in 2012 and had been an "active participant in the group;" he had not been placed on MAP status since the 2012 incident; and he had been working in the kitchen, where he was performing well. The doctor recommended that Luke consistently attend groups; revise drafts of his autobiography, sexual history questionnaire, and his personal maintenance contract; attend substance abuse groups; and follow all of the recommendations outlined in his treatment plan. Furthermore, Luke should continue to attend his anger management and relapse prevention modules; to refrain from "aggressive and disruptive behavior;" and to "use the process group" to "build out" a meaningful understanding of his "entrenched patterns of thoughts and beliefs."

Despite Luke's positive steps, Dr. Dudek concluded that Luke continued to be highly likely to reoffend as he had not yet sufficiently benefitted from treatment. Luke continued to lack an understanding of his deviant arousal patterns and the strategies to manage them; his "cognitive, behavioral, and emotional triggers" that lead to his sexual offending; and his use of sex and drugs as a means of coping with stress, "especially in light of the MAP placement from 2012."

The judge found Dr. Dudek's testimony to be credible, noting that "[t]he court listens to the testimony of the STU with some intensity, because Dr. Dudek is more familiar with [Luke] [than] other professionals that may appear[.]" Based on Dr. Dudek's credible testimony, the judge determined:

the [S]tate ha[d] presented evidence which satisfie[d] the Court by clear and convincing evidence that [Luke] ha[d] been convicted of multiple sexual offenses against children, both male and female, and [a] post-pubescent female; that he suffer[ed] from a mental abnormality and personality disorders, as set forth both by [Dr. Voskanian and Dr. Dudek,] as pedophilia, sexually attracted to pre-pubescent boys and girls; polysubstance dependence . . . controlled by his environment here; . . . which when combined with antisocial personality and pedophilia, elevate[d] [the] resident's risk to reoffend.

The judge noted that "[t]he diagnoses throughout the history of [Luke] . . . at the STU have been consistent and remain so, based on the testimony the court has heard, which [stood] as uncontradicted[.]" Further, "[t]he Court [was] faced with uncontradicted evidence of [Luke's] high risk, both on the objective tests and on [Dr. Dudek's testimony] . . . concerning his current level of treatment and understanding of his psychological problems."

Consequently, the judge determined that Luke was "highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care, and most important, for treatment, which he [was then] voluntarily engaging in[.]" This appeal followed.3

On appeal, Luke contends that the trial court erred in finding that he currently suffers from a mental abnormality that makes him highly likely to engage in an act of sexual violence if his commitment at the STU is not continued. 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., 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).

As the Supreme Court recently emphasized in R.F., supra, the scope of appellate review of judgments in SVPA commitment cases "is extremely narrow." 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. (internal quotation marks and citation omitted).

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 State v. Johnson, 42 N.J. 146, 162 (1964)).

Applying these deferential principles here, we affirm the order directing Luke's continued commitment, substantially for the cogent reasons set forth by Judge Pursel in his oral decision on October 8, 2013. Judge Pursel's findings were fully explained in his oral decision, and were based on Luke's conduct and his treatment history, as well as the credible testimony of Dr. Dudek and the corroborating written evaluation of Dr. Voskanian. Thus, we are satisfied from our review of the record that the judge's findings were supported by substantial credible evidence. See ibid.

We are mindful that the record shows that Luke has made some progress in his treatment within the STU. Even so, Dr. Dudek cautioned that until Luke is able to identify his entrenched sexual offense patterns, and develop a firm understanding of the strategies and techniques to manage those arousal patterns, he will have difficulty modifying his behavior in the long term. Hence, ample grounds exist to support Judge Pursel's conclusion that Luke presently remains "highly likely" to reoffend and that the statutory criteria for Luke's commitment continue to be met.

Affirmed.

1 Several of appellant's prior orders and opinions incorrectly list his resident number as SVP-389-04.

2 We use a pseudonym to protect the privacy of appellant and his victims.

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