IN THE MATTER OF THE CIVIL COMMITMENT OF W.C.

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NOT FOR PUBLICATION WITHOUT THE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 W.C., SVP-594-10.

______________________________

April 30, 2014

Submitted March 12, 2014 - Decided

Before Judges Grall and Nugent.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-594-10.

Joseph E. Krakora, Public Defender,

attorney for appellant W.C. (Alison

Perrone, Designated Counsel, on the

brief).

John J. Hoffman, Acting Attorney General,

attorney for respondent State of New

Jersey (Melissa H. Raksa, Assistant

Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief).

PER CURIAM

W.C. appeals from an order civilly committing him to the Special Treatment Unit (STU), which is 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. See N.J.S.A. 30:4-27.34a. Judge Freedman placed his statement of reasons on the record on June 30, 2011, and entered the order of commitment on July 1, 2011.

Defendant argues that the State failed to prove by clear and convincing evidence that he was subject to commitment under the SVPA. Because the judge's findings of fact were adequately supported by the record and his conclusions are based on a proper application of controlling legal principles, we affirm.

A person who has committed a sexually violent offense, as defined in N.J.S.A. 30:4-27.26, is subject to commitment under the SVPA. In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26). A commitment order may be entered only if there is "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 120, 132; In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 221 (App. Div. 2007); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

W.C. was convicted of a crime that brings him within the purview of the SVPA aggravated sexual assault, N.J.S.A. 2C:14-2a. That conviction is based on a guilty plea W.C. entered on December 13, 2001. The victim was W.C.'s seven-year-old step-granddaughter. W.C. forced the child to perform fellatio and digitally penetrated her on more than one occasion. In treatment, W.C. claimed he was intoxicated during the incidents.

W.C. was sentenced to an eleven-year term of imprisonment subject to terms of parole ineligibility and supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Pursuant to N.J.S.A. 2C:47-3, the judge ordered service of the sentence at the Adult Diagnostic and Treatment Center (ADTC).

In anticipation of W.C.'s release from the ADTC, the attorney general filed a petition initiating this commitment proceeding. An order of temporary commitment was entered in December 2010, and the commitment was tried to Judge Freedman on June 10 and 20, 2011.

Our standard for reviewing a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. Committing judges under the SVPA are "specialists in the area" and therefore their decisions are subject to review for "an abuse of discretion or lack of evidence." T.J.N., supra, 390 N.J. Super. at 225-26. The record shows no such abuse with respect to the order under review, which is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

W.C.'s most recent conviction was not his first conviction for a sexually violent offense. On June 25, 1990, W.C. pled guilty to sexual assault, N.J.S.A. 2C:14-2b, and endangering the welfare of a child, N.J.S.A. 2C:24-4a; the victim was his nephew's four-year-old daughter. W.C. was also charged with sexual assault of another young girl around the same time, but, in conformity with the plea agreement, those charges were dropped. W.C. has consistently stated that he does not remember assaulting the girl who was the alleged victim of the dismissed charge. Both of the 1990 charges alleged digital penetration, and with respect to those incidents W.C. claimed he was intoxicated, as he did when he was charged with similar conduct years later.

W.C. was released on parole for the 1990 sexual assault conviction in April 1992, and he violated his conditions of parole resulting in his return to prison in December 1993. Presumably, W.C.'s parole violation was based on his September 1993 theft by deception conviction. After his release on the theft by deception conviction, W.C. violated the conditions of his probation by failing to make payments toward fines and restitution, obtain full-time employment, and to provide Probation with a sufficient address. As a result, W.C.'s probation was terminated, and he again was returned to prison. W.C. also has several New York convictions including a conviction for disorderly conduct/fighting in 1989, and multiple burglary and criminal mischief convictions in 1987 and 1989.

At the commitment trial, Dr. Alberto M. Goldwaser, a STU psychiatrist, testified for the State, and Drs. Rosemarie Vala Stewart and Christopher P. Lorah, both psychologists, testified on W.C.'s behalf. All of the experts diagnosed W.C. with pedophilia and poly-substance abuse. Drs. Goldwaser and Stewart diagnosed W.C. with antisocial personality disorder; Dr. Lorah diagnosed W.C. with antisocial personality disorder "light," a less severe version of antisocial personality disorder. Where the experts differed was in their evaluation of the risk of W.C. reoffending sexually if not confined for treatment in the STU.

In Dr. Goldwaser's opinion, W.C. was highly likely to reoffend. His several diagnoses were based on his interview with W.C., his review of other mental health professionals' evaluations, the ADTC treatment summary,1 police reports, and presentence reports. Dr. Goldwaser based his diagnosis of pedophilia on W.C.'s history of offending that was, in his view, indicative of a long-standing sexual attraction to children. Dr. Goldwaser concluded that the risk associated with W.C.'s pedophilia is exacerbated by other disorders poly-substance abuse and antisocial personality disorder. In his opinion, the poly-substance abuse "increased his excitement and volition" to act upon his pedophiliac urges; and the antisocial personality disorder leads him to act impulsively, irrationally and in disregard of others' rights. Dr. Goldwaser considered the effects of treatment W.C. had undergone. But he viewed W.C.'s progress in treatment as uneven because of his lack of initiative for example, by failing to participate in Alcoholics and Narcotics Anonymous. Considering all of those factors, Dr. Goldwaser was of the opinion that W.C. was highly likely to reoffend if not confined for further treatment.

Dr. Stewart's diagnoses and her opinion that W.C.'s risk of recidivism did not rise to the level of highly likely to reoffend were based on her interview of W.C., the evaluations of other medical professionals, police reports, presentence reports, and ADTC treatment notes. Dr. Stewart acknowledged factors aggravating W.C.'s risk his diagnoses and his past violation of community supervision imposed for other non-sexual convictions. In her opinion, however, mitigating factors reduced W.C.'s likelihood to reoffend below a "highly likely" threshold. She noted that although W.C.'s treatment presents a "mixed picture" and that he "certainly wasn't a treatment star," he had made "some gains in treatment" and progress at ADTC was "fair." For example, he had given others insightful feedback even though he failed to take initiative in addressing his own issues. In Dr. Stewart's opinion, the risk posed by W.C.'s predisposition to commit pedophiliac acts would be diminished because of his treatment and the fact that he would be subject to community supervision if released.

Dr. Lorah agreed with Dr. Stewart that W.C.'s risk of reoffending sexually was less than highly likely. That opinion and his diagnoses were based on his interview of W.C., other mental health professionals' evaluations, ADTC treatment notes, and a presentence report.2 In his view, W.C. is "on the relative low end when it comes to lapses in volitional control." Dr. Lorah's opinion that W.C. was at the low end of impulsivity was based on the fact that W.C. had only "two/three victims, separated by a period of eleven years" despite having the opportunity to sexually assault other children. In addition, it was based on Dr. Lorah's belief that W.C. could meet his treatment needs outside of the STU; that W.C.'s attraction to adult women as well as children would give him a lawful means of satisfying his impulses; and that W.C. would be subject to community supervision for life.

M.R., the wife of a friend W.C. made while confined at the ADTC, also testified on W.C.'s behalf. M.R. was willing to have W.C. live with her and her family upon his release.3 M.R. acknowledged that she lives in close proximity to members of her extended family, including two young children, but she testified that the children would not be permitted to be alone with W.C. or be told about his convictions. At the time of the commitment hearing, M.R.'s husband was serving a sentence imposed on entry of a guilty plea to a charge of sexually assaulting his teenage daughter. Despite her husband's guilty plea, M.R. characterized the sexual assault as "alleged." She stated her husband could be guilty, but she said she was unsure because neither her husband nor her daughter had discussed the incident with her.

Judge Freedman reviewed the testimony and treatment notes from the ADTC, and he evaluated that evidence under the standards enunciated by the Supreme Court in W.Z. He found and concluded:

So, I'm satisfied to find that [W.C.], by clear and convincing evidence, that [W.C.] does suffer from a mental abnormality in the form of pedophilia. There is no disagreement about that.

He also has substance dependence, another abnormality on Axis I.

He also has antisocial personality disorder on Axis II.

. . . .

So, I am satisfied, [that] at least he would have serious difficulty controlling his sexually violent behavior to such a degree, in the reasonably foreseeable future he would be highly likely to engage in acts of sexual violence. What he does is extremely dangerous.

The judge further concluded that W.C.'s proposed placement was insufficient because M.R. was at least in partial denial of her husband's crime and because M.R. and her husband would not communicate about the crime.

On appeal W.C. argues:

I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT W.C. WAS SUBJECT TO SVP COMMITMENT.

Having considered the arguments presented in light of the record, we have determined that they have insufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). Judge Freedman's findings are supported by clear and convincing evidence in the record. R. 2:11-3(e)(1)(A). With respect to W.C.'s claim that the judge erred in relying upon Dr. Goldwaser's testimony because his opinion was based, in part, upon hearsay, it suffices to note that we discern no misapplication of the pertinent evidence rules, N.J.R.E. 703, 803(c)(6) and 808, or of the evidentiary or substantive principles governing SVPA commitments discussed in In re Commitment of A.E.F., 377 N.J. Super. 473 (App. Div. 2005); G.G.N., supra, 372 N.J. Super. 42; In re Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004); or In re Commitment of A.X.D., 370 N.J. Super. 198 (App. Div. 2004).

Affirmed.

1 Dr. Goldwaser's report indicates that he utilized the ADTC treatment notes, however, he testified that the treatment notes were unavailable at the time he made his report, and he used a treatment summary instead.

2 During cross examination, Dr. Lorah admitted that he had not reviewed all of the documents that the Attorney General's Office had produced.

3 This offer was a relatively recent development, as W.C.'s prior release plan called for him to live in a boarding house or hotel near his family and a different friend from the ADTC.