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DOCKET NO. A-04189-13T2




December 8, 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-201-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant V.A.M. (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).


This is appellant V.A.M.'s sixth1 successive appeal of his civil commitment to the Special Treatment Unit ("STU") under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. The present appeal arises from the trial court's March 6, 2014 order continuing his confinement after a review hearing that day. We affirm.

There is no need to repeat the background set forth multiple times in our five prior opinions. Suffice it to say that appellant committed his predicate sexual offense in April 1992, when he anally penetrated a twelve-year-old girl. Consistent with a plea agreement, the criminal judge sentenced appellant to a fifteen-year custodial term to be served at the Adult Diagnostic and Treatment Center ("ADTC"). Appellant was civilly committed to the STU in 2001 shortly before his scheduled release from the ADTC. He has remained there since that time, making limited progress in his treatment.

The State presented two unrebutted expert witnesses at the March 2014 review hearing before Judge James F. Mulvihill. Appellant did not testify, and he did not call any witnesses in his own behalf.

The State's first witness was John Zincone, M.D., a psychiatrist. Because appellant refused to be interviewed by Dr. Zincone, the psychiatrist prepared his report based on the available records and treatment notes. Dr. Zincone's report was admitted into evidence without objection.

Dr. Zincone reviewed appellant's sexual offending history, which included not only the aforesaid April 1992 aggravated sexual assault upon a minor that led to his conviction, but also other wrongful sexual behavior. In Dr. Zincone's opinion, appellant's commission of a second offense while on probation for the first offense

provides evidence for a poorly controlled deviant arousal given the ages of the victims. It's evidence for [appellant] being difficult to control in the community. It provides evidence for a significant antisocial orientation in that he continued to not be able to have lawful behaviors even under supervision, past negative circumstances.

As to appellant's psychiatric history, Dr. Zincone remarked that appellant had a history of "depressive type symptoms," that largely went untreated during his "chaotic upbringing." In this regard, Dr. Zincone stated in his report that appellant suffers from: "Pedophilic disorder, non exclusive type, sexually attracted to females, in a controlled environment; Other Specified Depressive Disorder; Alcohol Use Disorder, severe, in a controlled environment; Personality Disorder and Mental Retardation; [and] Other Specified Personality Disorder, (with antisocial and narcissistic features)." These diagnoses were unrefuted at the instant hearing, and are largely consistent with prior diagnoses of appellant set forth in the prior appeals. See, e.g. V.A.M. IV, supra, No. 2625-09, slip op. at 5; V.A.M. III, supra, No. A-1711-08, slip op. at 4.

Dr. Zincone did acknowledge that appellant had shown some recent progress in his treatment within the STU. Although appellant traditionally had taken on an attitude of "hopelessness, thinking as though he would never leave the STU," Dr. Zincone noted that "[o]ver the past year, there's been more engagement, and increase in the quality of his participation." On this point, Dr. Zincone referred to the STU's clinical staff's observations reflected in the treatment records

According to the 10/15/2013 multidisciplinary treatment team report, [appellant] was described as an individual who has begun to meaningfully engage in the STU treatment program over the past year. He was noted to continue to be prone to slip into periods of dysthymia2 and hopelessness, but this was not happening as frequently in the past year.

[The] TPRC [the Treatment Progress Review Committee] indicated in their 10/20/2013 report [that appellant] had increased his engagement in treatment, had maintained a positive treatment trajectory in process group, and had completed some psycho-educational modules during the review cycle. He was thus advanced in phase. He was recommended to maintain his motivation, and address his mood issues.

According to Dr. Zincone, appellant had a Static 99R score of 3, placing him in the "low moderate risk" of reconviction for a violent sexual offense.

Despite these positive factors, however, Dr. Zincone ultimately concluded that that appellant's ongoing mental abnormalities and personality disorders nonetheless made him "highly likely" to reoffend upon release. As Dr. Zincone reasoned

[Appellant] has a -- paraphilic disorder, I'm giving him pedophilia, that provides evidence for him to have a deviant arousal towards prepubescent children, his history of having multiple crimes, his history of . . . admitting lack of control of his sexual ways provides evidence of poor sexual impulse control.

And he has a number of independent risk factors . . . that increase his risk at this time.

Dr. Zincone elaborated on these risk factors in his report. Those risk factors included: failure to successfully complete outpatient sex offender treatment; deviant sexual arousal; having an antisocial orientation; poor community supervision history; history of alcohol dependence; intimacy deficits; limited positive significant influences and general social rejection; lack of concern for others; poor problem solving skills; negative emotionality/hostility; sex as coping; deviant sexual interests; and poor cooperation with supervision.

The State also presented expert testimony from Kris Stankiewicz, Ph.D., a psychologist. Dr. Stankiewicz is a member of the TPRC, which met with appellant in advance of his review hearing. In conjunction with that TPRC meeting, Dr. Stankiewicz authored appellant's annual review report. The report was admitted into evidence at the hearing without objection.

For the most part, Dr. Stankiewicz's testimony echoed Dr. Zincone's testimony. According to Dr. Stankiewicz, the positive aspects of appellant's status are tempered by two significant offsetting factors.

First, Dr. Stankiewicz's report noted that appellant personally believed he had a "solid grasp of his assault cycle," whereas the TPRC perceived he had only a "fair command." This discrepancy was important, Dr. Stankiewicz explained, because the "core of treatment" is relapse prevention. Hence, appellant's failure to complete the Relapse Prevention 1B3 program was a matter of concern.

Second, according to Dr. Stankiewicz, despite appellant completing some substance abuse treatment and attending an AA self-help group, he still suffered from "pedophilia, major depressive disorder and personality disorder NOS [Not Otherwise Specified] with antisocial features."

Dr. Stankiewicz concluded

In summary, [appellant] appears that he has been engaging in treatment and maintained a positive trajectory by engaging in process group and completing some psycho-educational modules during the past year. . . .

In examining [appellant's] static risk, he falls within the low-moderate range. However, there are dynamic risk factors that need to be considered. Paramount among these is [appellant's] deviant arousal to underage children. [Appellant's] alcohol dependence is a dynamic risk factor that will need to be addressed during the course of treatment as well. [Appellant] was also on parole when he committed his index offense and is a dynamic risk factor. Treatment will have to help [appellant] better cope with and comply with the conditions of parole. [Appellant] has had a positive year in treatment, however treatment cannot yet be said to be a significant mitigating factor at this time. [Appellant's] loneliness, limited socialization, and negative emotionality (e.g.[,] hopelessness) are dynamic risk factors that will also need to be addressed through treatment as well. As such[,] [appellant] continues to be highly likely to engage in future acts of deviant sexual behavior and presents at a high risk to recidivate if not confined to a secure facility such as the STU.

[(Emphasis added).]

Judge Mulvihill issued an oral decision on March 6, 2014. After canvassing the evidence, Judge Mulvihill credited the testimony of both of the State's experts. Specifically with regard to Dr. Zincone, Judge Mulvihill found the psychiatrist to be "extremely credible in terms of interest and demeanor, very forthright, very knowledgeable both in his testimony, the cross examination and . . . the questions by the [court], and of course, his report is extremely thorough." Similarly, the judge found Dr. Stankiewicz's testimony to be "extremely credible[,] [v]ery forthright, [and] very knowledgeable."

Ultimately, despite acknowledging that appellant had made some progress at the STU, Judge Mulvihill concluded

[T]he State has proven by clear and convincing evidence, number one, that [appellant] has been convicted of two sexual violent offenses . . . that he suffers from a major mental abnormality personality disorder by clear and convincing evidence, that's pedophilia, personality disorder.

That they predispose him to sexual violence and that he's, by clear and convincing evidence, presently high likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment.

[(Emphasis added).]

On appeal4, appellant contends that Judge Mulvihill's opinion unfairly discounted his treatment progress. He submits that he is ready and suitable for a discharge plan. We disagree.

The applicable law is well established. Under 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).

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.

As the Supreme Court 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 mandatory limited scope of review here, we affirm the trial court's order continuing appellant's commitment to the STU. The court's conclusions are amply supported by the evidence and are fully consistent with the law governing SVPA matters. Although the record does reflect a degree of progress that appellant has made within the STU, the trial court 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 set forth by Judge Mulvihill.


1 In the Matter of the Civil Commitment of V.A.M., No. A-1650-03 (App. Div. Oct. 13, 2004) (slip op. at 1) ("V.A.M. I"); In the Matter of the Civil Commitment of V.A.M., No. A-5766-05 (App. Div.) (slip op. at 1) ("V.A.M. II"), certif. denied, 192 N.J. 596 (2007); In the Matter of the Civil Commitment of V.A.M., No. A-1711-08 (App. Div. Apr. 24, 2009) (slip op. at 1) ("V.A.M. III"); In the Matter of the Civil Commitment of V.A.M., No. A-2625-09 (App. Div. Sept. 17, 2010) (slip op. at 1) ("V.A.M. IV"); In the Matter of the Civil Commitment of V.A.M., No. A-0883-11 (App. Div. Apr. 11, 2012) (slip op. at 1) ("V.A.M. V").

2 Dysthymia, as Dr. Zincone described it at the March 6, 2014 hearing, is a low-grade, chronic depression.

3 As explained in Dr. Stankiewicz's report, Relapse Prevention 1B "focuses on helping resident's creating their sexual assault cycle and serves as the basis for Relapse Prevention."

4 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.