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

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RECORD IMPOUNDED

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF H.E., SVP-518-08.

________________________________

December 2, 2014

 

Argued October 20, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-518-08.

Lewis P. Sengstacke, Assistant Deputy Public Defender, argued the cause for appellant H.E. (Joseph E. Krakora, Public Defender, attorney).

Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

Pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38, appellant H.E. has been civilly committed to the Special Treatment Unit ("STU") since 2009. He appeals from the trial court's November 12, 2013 order, which followed a periodic review hearing, continuing his commitment to the STU. We affirm.

We need not repeat the background facts, which are set forth in our prior unpublished decision upholding appellant's initial commitment under the SVPA. See In the Matter of the Civil Commitment of H.E., No. A-5298-08 (App. Div. Feb. 8, 2012) (slip op. at 1) ("H.E. I"). In that prior opinion, we described appellant's predicate convictions arising out of his guilty pleas in 1999 to aggravated sexual assault upon a fifteen-year-old girl, N.J.S.A. 2C:14-2(a), and aggravated criminal sexual contact with a twenty-four-year old woman, N.J.S.A. 2C:14-3(a). Appellant was sentenced in April 2000 to a twelve-year custodial term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. After he was examined at the State's request by mental health experts near the completion of his criminal sentence, the trial court approved his civil commitment to the STU in June 2009. H.E. I, supra, No. A-5298-08, slip op. at 5-6.

The present review hearing was conducted before Judge Philip M. Freedman in October 2013. The State relied on the testimony of two expert witnesses: Indra Cidambi, M.D., a psychiatrist, and Jamie Canataro, Psy.D., a psychologist1. Dr. Cidambi examined appellant in advance of the hearing. Dr. Canataro, a member of the STU's Treatment Progress Review Committee ("TPRC"), met with appellant, along with the other members of the TPRC, prior to the hearing.

Both Dr. Cidambi and Dr. Canataro diagnosed appellant with antisocial personality disorder, in addition to other mental health abnormalities and conditions. Each of them concluded that appellant meets the criteria for continued commitment under the statute.

Dr. Cidambi testified that H.E.'s risk assessment, as measured by the Static-99R instrument, placed him at a "high" risk for sexual recidivism. She also found "of great concern" that appellant had committed a sexually violent offense while he was on probation for a non-sexual offense. Dr. Cidambi also noted that appellant's diagnosis of antisocial personality disorder is manifested by "not having remorse, not having control and taking [advantage of] others for [the] benefit of his own necessity."

Although Dr. Cidambi acknowledged that H.E. has been an eager participant in treatment, and that he has advanced to Phase Three2 within the STU, she cautioned in her report that his release from civil commitment would be premature because his

treatment gains are still basic and he needs to make meaningful progress in fully understanding important sex offender treatment concepts and internalizing them. His version of the sexual offenses he committed is not congruent with the official version, which needs to be addressed. He has to develop and understand his sexual assault cycle and explore and address his deviant arousal. His knowledge of Relapse Prevention techniques is not adequate as demonstrated by his not passing Relapse Prevention 1B. His limited reading ability is also a factor in that it is inhibiting his ability to understand complex concepts.

Bearing this in mind, Dr. Cidambi concluded in her report3 that appellant "suffers from a mental abnormality and a personality disorder that affects his emotional, volitional and cognitive capacity such that he is highly likely to sexually re-offend if not confined in a secure facility for control, care and treatment."

Similarly, in her testimony at the hearing, Dr. Cidambi opined that appellant is "highly likely to sexually reoffend" given his "[m]ultiple offenses, having stranger victim[s], high level of intrusiveness[,] . . . [a] repeat offense despite being on probation [,] . . . early onset of sexual offending," substance abuse disorder, antisocial personality disorder, feelings of entitlement, impulsivity, and disregard for the safety of others.

On the whole, Dr. Canataro agreed with Dr. Cidambi's assessment that appellant remains likely to sexually reoffend if he were released from the STU. As Dr. Canataro testified

There are mixed opinions about [appellant's treatment]. To [appellant's] credit, he is behavioral[ly] compliant, he participates in treatment. He takes floors in treatment. There are concerns about his overall personality structure at times. Some of his treatment providers noted that he can present as grandiose and controlling.

At times, he can be dismissive to female staff. So, yes, he is behavioral[ly] compliant, he participates in modules, but his overall personality structure is becomes a focus right now.

So too, as Dr. Cidambi had cautioned, Dr. Canataro noted

[T]he largest factor here is that [appellant] continues to have [] a discrepant account of his sexual offenses. He was charged with four sexual offenses with varying levels of consequences. When he describes these offenses, he does seem to minimize, minimize the level of violence utilized.

Those kinds of things are going to present a lot of difficulty for [appellant] in the [Therapeutic Community].4 He is not noted to have a good understanding of treatment concept, internalization of treatment concepts, and the [T.C.] is more of an advanced therapeutic milieu.

. . . .

[W]e just recommended, which was also recommended by [the] treatment staff[,] that [appellant] take another year and increase his ability to be challenged within his process group, explore the sexual offenses more, accept more responsibility.

With all this in mind, Dr. Canataro concluded

[Appellant] is by all accounts doing well in treatment at this time. He is participating in treatment, he's identifying,he's in the process of identifying his core treatment issues, but there's still more work to be done.

He still needs to work on his overall personality structure that contributed to the sexual offenses, and I'm not sure how much he is accepting that yet. He does need to consider the level of violence that he's utilizing in his sex offenses.

. . . .

We're not at the point yet to say that [appellant] has enough treatment in order to mitigate his risk below the threshold of highly likely, but we're certainly heading in the right direction for [him].

The TPRC report, which was also admitted into evidence, concluded similarly. Noting that appellant remained a "high risk to sexually recidivate" the TPRC recommended that he remain in Phase Three and "improve his receptivity to confrontation, ameliorate the discrepancies that exist within his account of his offenses and to decrease his minimization of force in his account of his sexual offending."

Appellant presented expert testimony from Timothy Foley, Ph.D., and factual5 testimony from Carole Lester, Psy.D. Both Dr. Foley and Dr. Lester are psychologists.

Dr. Foley agreed that appellant has exhibited the criteria for antisocial personality disorder. However, he opined that the disorder was not active at the present time because of appellant's "prosocial history for the last 13 years," including his compliance with treatment, abstinence from drugs and alcohol, and lack of recent institutional infractions.

Dr. Foley opined that H.E. was not likely to reoffend because of, among other things, his history of compliance, his non-use of drugs or alcohol, and "[h]is ability to impress his treaters and to push back against negative influences in some of his treatment groups." Dr. Foley also favorably noted that appellant had completed the treatment modules within the STU that have been offered to him. Dr. Foley acknowledged, however, that appellant denies and minimizes aspects of his sexual offense history.

Dr. Lester, who had briefly worked with appellant as a counselor within the STU, explained in her testimony why she had previously recommended that appellant be upgraded from Phase One to Phase Two of his treatment. She noted how he had shown motivation, and been respectful and polite with her. She also explained why she had recommended him to be admitted to the T.C., where he would receive more support and could progress more quickly through treatment modules.

Appellant's mother also testified briefly at the hearing. She stated that appellant had been in special education classes as a child and that he began to have disciplinary problems once his father left the household when appellant was eight years old. The mother also indicated that appellant is engaged to a woman who is employed and who has a stable residence. The mother represented that she and other family members would assist appellant in transitioning back into the community if he were released.

The law is well settled. Pursuant to the SVPA, an involuntary civil commitment can follow an offender's service of a custodial 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" consists of "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. The 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). A showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of R.F., 217 N.J. 152, 173-74 (2014). A diagnosis of antisocial personality disorder qualifies under the statute. W.Z., supra, 173 N.J. at 114, 117.

At the SVPA commitment hearing, the State has the burden of proving that the offender poses a threat

to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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 the offender's present "serious difficulty with control over dangerous sexual behavior." Id. at 132-33. To commit or continue to commit the individual to the STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; see also R.F., supra, 217 N.J. at 173.

In his detailed oral opinion, Judge Freedman concluded that these criteria for appellant's continued commitment were met, despite the progress he has made within the STU. The judge agreed with Dr. Canataro and Dr. Cidambi that appellant is not ready for discharge, and that he remains highly likely to reoffend. The judge disagreed with Dr. Foley's opinion that appellant's past sexual offenses were essentially the result of an antisocial "lifestyle," finding instead that appellant's past use of drugs and alcohol only partially explained his wrongful behavior. The judge was persuaded by the evidence that appellant's antisocial personality "predisposed him to engage[] in acts of sexual violence, not just general criminality."

Upon extensively reviewing appellant's treatment notes, Judge Freedman found significant that appellant uses "rationalization and denial" and "externalization" when confronted with his past sexual offenses. Although appellant has become "very religious," the judge agreed with Dr. Canataro that his faith alone "is not an adequate relapse prevention plan."

Having carefully considered the evidence, Judge Freedman concluded that the State had proved by "clear and convincing evidence that [appellant] does in fact suffer from mental abnormalities in the form of substance abuse diagnoses, as well as an antisocial personality disorder, and that, as his record shows, they predispose him to engage in acts of sexual violence."

Appellant contends on this appeal6 that the judge erred in not giving him enough credit for his progress and compliant behavior within the STU. Appellant also complains that the STU has not offered him treatment modules quickly enough7. He asserts that he is ready for a discharge plan to be formulated.

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 must 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 to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

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 (internal citations omitted). "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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).

Applying this limited scope of review here, we affirm the trial court's order of continued commitment. The court's conclusions are amply supported by the evidence and are fully consistent with the law governing SVPA matters. The trial court had the prerogative as fact-finder to find the State's experts more persuasive than Dr. Foley. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the well-known proposition that a fact-finder has the best "opportunity to hear and see the witnesses and to get a feel for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (internal quotation marks omitted).

Although the record does reflect certain progress that appellant has made within the STU, the trial court nonetheless had a sufficient evidential basis to conclude that appellant still meets the criteria for commitment under the SVPA. We affirm the order of continued commitment, substantially for the reasons articulated at length by Judge Freedman in his November 12, 2013 oral opinion.

Affirmed.

1 Although Dr. Canataro was called as a witness during appellant's own case at the hearing, the court recognized that she was an adverse witness and permitted appellant's counsel to examine her with leading questions. N.J.R.E. 611(c).

2 At oral argument, counsel clarified that Phase Three has now been divided into two sub-phases, A and B, and that appellant is in Phase 3A.

3 Dr. Cidambi's written expert report was admitted into evidence at the hearing, without objection, as was the report of Dr. Canataro.

4

As Dr. Canataro described the term, the Therapeutic Community ("T.C.") within the STU is

an advanced therapeutic milieu that we have at the facility. So, it is comprised of approximately 40 residents, and these are for our more advanced residents.

So, instead of being challenged and confronting by treatment facilitators in the outside process groups, in the T.C., in the community, residents are challenging and confronting almost on a 24-hours basis, inside of groups, outside of groups.

5 Appellant's counsel elected not to qualify Dr. Lester as an expert witness, and instead presented her solely as to her factual knowledge of appellant's behavior.

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

7 The Deputy Attorney General represented to us at oral argument that the State is not opposed to providing appellant with the modules that he needs to improve his condition. We need not address in this appeal any implementation issues that may exist concerning the modules, and leave that to the institution's administrative process.