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

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NOT FOR PUBLICATION WITHOUT THE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 T.T., SVP-117-00.

______________________________________

December 31, 2014

Submitted September 23, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-117-00.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).

PER CURIAM

T.T. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated 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.

He appeals from the October 12, 2012 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4-27.35. We affirm.

T.T. is fifty-three years old and has been committed to the STU since 2001. Although he has been committed for over a dozen years, T.T. has yet to move beyond Phase 2 of his treatment as he refused to discuss his sexual offenses or meaningfully participate in treatment for the first seven or eight years of his commitment. In the year preceding his 2011 review hearing, he failed to regularly attend the process groups available to him or pursue work on his programmatic requirements.

T.T. pleaded guilty in 1990 to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and was sentenced to a sixteen-year term of imprisonment, eight years of which were to be served without parole. The victim was a six-year old girl. Besides being brutally raped, the child had been struck with a brick, which knocked out her front teeth, broke her jaw and left cheek bone and resulted in a concussion. In 1977, when he was fifteen years old, T.T. was adjudicated delinquent for sodomy committed against a nine-year old boy. He also has convictions for robbery, burglary and theft.

Prior to T.T.'s scheduled release from state prison in September 2000, the State filed a petition for his involuntary commitment under the SVPA. He was committed temporarily to the STU on September 18, 2000, and, following a hearing, the court entered a final order of commitment on February 22, 2001. Since his initial commitment, T.T. has been recommitted to the STU following review hearings in 2003, 2005, 2006, 2007, 2009, 2010 and 2011. T.T. appealed from the 2005 order, which we reviewed and affirmed. In re Civil Commitment of T.A.T., No. A-0683-05T2 (App. Div. Feb. 15, 2006).

The review hearing at issue here took place on October 12, 2011. The court heard testimony from Dr. Rosemarie Vala Stewart, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC), Dr. Pogos Voskanian, a psychiatrist, and T.T.

Dr. Vala Stewart interviewed T.T. with the TPRC panel on September 6, 2011 and prepared a report which was admitted into evidence. The doctor recounted the history of T.T.'s treatment at the STU, noting his long-standing unwillingness to candidly discuss his sexual offenses. Although noting that he had become more forthcoming about his offense history three years ago and had begun work on the written programmatic requirements of the STU, completed several substance abuse modules and attempted the relapse prevention module twice, Dr. Vala Stewart reported that T.T. had stopped work on those treatment components when he was moved from Kearny to the Adult Diagnostic & Treatment Center in Avenel. He refused to submit to a sexual history or polygraph examination and had consistently expressed reluctance to do so in the future. Further, she noted that T.T. had attended few process groups and modules over the past year and that his more active engagement of the prior two years had eroded.

Dr. Vala Stewart opined that T.T. suffers from antisocial personality disorder, substance abuse (provisional) (alcohol, cannabis, cocaine) and post-traumatic stress disorder (by history). She concluded that "because [T.T.] remains in an early stage of treatment," he continued to require inpatient, phase two sex-offender treatment and remained at high-moderate risk for recidivism as reflected in his score of 5 on the Static-99R, an actuarial measure of relative risk for sexual offense recidivism.

Dr. Voskanian testified that although T.T. had interviewed with him in 2009, he refused the doctor's attempts to interview him for the doctor's September 6, 2011 report. Based on his review of T.T.'s STU records and the doctor's prior assessment, Dr. Voskanian diagnosed T.T. with paraphilia NOS; rule-out sexual sadism; pedophilia, attracted to males and females, non-exclusive type; alcohol and marijuana dependence (with continued use in a controlled environment); and antisocial personality disorder.

Reviewing the rape of the six-year old, the doctor testified that "extreme . . . is a mild word for the degree of violence" inflicted on the child. That T.T. had also committed a sexual offense as a juvenile against a much younger boy suggested to the doctor that

the offending sexual aggression, sexual violence it's not an isolated event. And when there are several instances of sexual violence there is usually underlying cause for that, which is some sexual pathology. Also it indicates that there is a compulsive nature to it. It also indicates that there is no remorse, no regard for the prior victim and the empathy for the prior offense is lacking [making] it . . . more likely that the resident would commit another offense.

Acknowledging T.T.'s unwillingness to admit to his sexual offenses, Dr. Voskanian testified that it was important that T.T. acknowledge what he has done and why he did it, "what were his feelings, thoughts, drives at the time when he committed these offenses to be able to understand himself and based on that understanding[,] develop strategies to refrain from future similar behaviors." He opined that "[t]he expression of sexuality combined with extreme physical violence generally renders a poor prognosis."

T.T. testified in his own behalf. He expressed his frustration at the move to Avenel and explained that he had been promised that if he completed the relapse prevention module he would be moved up to Phase 3 of treatment, which the move prevented. He testified that the records stating that he had not attended the relapse prevention treatment at Kearny were not correct and that he felt the move had eradicated his eight previous years of positive work in treatment.

Following the conclusion of testimony, the judge ordered T.T.'s continued commitment to the STU. The judge found

by clear and convincing evidence that, one, the resident has been convicted of a sexually violent offense; two, he suffers from a mental abnormality or personality disorder as set forth by Dr. Voskanian that makes him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment.

This Court finds by clear and convincing evidence that [T.T.], by history, is an individual who has serious difficulty in controlling sexually violent behavior such [that it is] highly likely that he or she will not control their sexual[ly] violent behavior and will reoffend. Serious difficulty to control and because of that this Court will order that [T.T.] remain for another year until the review period is rescheduled.

The judge dismissed T.T.'s claims that the move to Avenel thwarted his treatment, noting that treatment was made available to T.T. at Avenel, and T.T.'s long history of refusing and failing to participate in treatment at Kearny.

On appeal, T.T. reiterates his claims that the State failed to prove by clear and convincing evidence that he was subject to continued commitment, and asserts in the alternative that he should be released as a result of the State's failure to provide him treatment. We reject these arguments.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. In order to secure an order for commitment under the SVPA, the State must prove the individual is a threat to the health and safety of others because of the likelihood of engaging in sexually violent acts. W.Z., supra, 173 N.J. at 132. The State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is "highly likely" the person "will not control his or her sexually violent behavior and will reoffend." Ibid. The court must address the person's "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 132-34; 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).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126-32. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

The scope of appellate review of a judgment for commitment under the SVPA is "extremely narrow." In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). The trial court's decision is to be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting 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 appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Applying those standards here, 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). T.T.'s argument that he should be released as a result of the State's failure to provide him treatment at Avenel is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.