STATE OF NEW JERSEY v. HENRY REETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY REETH, a/k/a

DOUG REETH, DOUGLAS REETH,

Defendant-Appellant.

_______________________________

April 23, 2014

Submitted November 20, 2013 - Decided

Before Judges Lihotz, Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-04-0699.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Laura C. Sunyak, Legal Assistant, on the brief).

PER CURIAM

Defendant Henry Reeth appeals from his conviction following a non-jury trial. Judge Francis J. Vernoia found defendant was guilty beyond a reasonable doubt of the fourth-degree offense of violating a condition of his special sentence. N.J.S.A. 2C:43-6.4(d).1 Specifically, defendant was found guilty of failing to complete mental health counseling deemed reasonably necessary by his parole officer, and required as a condition of community supervision for life (CSL). See N.J.A.C. 10A:71-6.11(b)(12) (directing completion of "an appropriate community or residential counseling or treatment program as directed by the assigned parole officer"). Following his conviction, the judge sentenced defendant to 364 days in the Monmouth County Jail, suspending 304 days, and imposed applicable fines and penalties. On appeal, defendant argues:

BECAUSE THE TRIAL COURT'S LEGAL CONCLUSIONS WERE CLEARLY ERRONEOUS AND BECAUSE ITS FINDINGS WERE NOT BASED ON CREDIBLE EVIDENCE IN THE RECORD, REETH'S CONVICTION MUST BE REVERSED.

More specifically, defendant maintains the judge's factual findings were not supported by the evidence and his legal conclusion grounded on those facts was "clearly erroneous." We are not persuaded and affirm.

These facts are found in the trial record. Following his conviction for aggravated sexual assault, defendant's sentence included a provision imposing CSL upon parole from prison. Prior to his release, defendant met with Parole Officer Timothy Sullivan, who provided him with the terms and conditions of CSL. Defendant acknowledged receipt of these conditions by executing a certification contained on the document.

The certificate listed as condition A1: "I am to report to the assigned parole officer as instructed." Also, condition A12 stated: "I am to participate in and successfully complete an appropriate community or residential counseling or treatment program as directed by the assigned parole officer."

In June 2009, a new parole officer, Jessica Swarer, was assigned to supervise defendant. Shortly after Swarer assumed defendant's supervision, she received a notice from The Comprehensive Center for Psychotherapy, P.C. (Comprehensive Center), provider of sex offender specific counseling, where defendant had been attending counseling for two years, which stated defendant should return to the group. As a result of the notice advising defendant's needs were beyond the scope of the Comprehensive Center's counseling programs, and based on Swarer's individual observations of defendant's odd behaviors and his prior mental health history, Swarer determined defendant needed mental health counseling. Defendant told her he would not attend because it interfered with his educational training.

Swarer personally provided defendant with a letter imposing the counseling requirement as set forth in condition A12 of his CSL requirements. Defendant told her he did not need mental health counseling. Swarer located a program, conducted by the Jersey Shore University Medical Center Park Place Partial Hospitalization Program in Asbury Park (Park Place), which provided mental health counseling and accepted charity care. Swarer registered defendant and directed him to report to Park Place on December 28, 2009. Although defendant appeared for Park Place's intake appointment, defendant refused to participate in an evaluation, stating he did not need mental health counseling.

Johnny Bryant, who worked for Park Place, spoke to defendant when he appeared for his intake appointment on December 28, 2009. Bryant explained the program provided mental health and substance abuse counseling, Monday through Friday from 9 a.m. to 3 p.m. However, it did not address sex offender therapy. Defendant told Bryant he declined to participate in the intake process and refused mental health services. Bryant told defendant Park Place could not force him to comply or attend. Defendant did not mention a scheduling conflict with his employment training program. In February 2010, defendant returned to Park Place and attended full-time counseling, five days per week after he was arrested for violating the conditions of CSL. Thereafter, he was discharged.

Swarer also testified defendant missed his monthly scheduled meeting with her on November 19, 2009. He also missed a meeting scheduled for December 2, and the rescheduled meeting on December 3, 2009. Specifically, defendant was instructed to report to the Red Bank parole office on December 2, 2009 to meet with Sergeant Farrell to discuss his failure to attend counseling. When defendant missed the scheduled time, Swarer called him. Defendant said he thought the appointment was in Neptune. Swarer rescheduled the meeting and instructed defendant to appear the next day, in the Neptune parole office. Again, he did not show, stating he mistakenly went to Red Bank.

As a result of defendant's missed appointments and initial refusal to attend Park Place's program, he was indicted, charged with violating the conditions of CSL during the period between November 19, 2009 and January 6, 2010.

Defendant testified on his own behalf. He stated he did not understand why he was discharged from the Comprehensive Center. In discussing why he did not immediately attend Park Place, he stated he believed victims may participate in the program, creating "a high risk" for him as a sex offender. He also explained he could not attend sessions that conflicted with his employment training, as he enrolled in a program to secure a commercial driver's license (CDL) in March 2009. On cross-examination, defendant admitted he did not believe he needed mental health counseling. Further, he acknowledged he completed his CDL classroom training in May 2009, passed his written CDL exam in October, and would be awarded a license after he passed the driving test conducted by the Division of Motor Vehicles.

Judge Vernoia reserved his decision and, thereafter, rendered a bench opinion. He credited the testimony of Swarer and Bryant, finding defendant was clearly advised and fully aware of the counseling requirement set forth in the conditions of parole, but "steadfastly refused to attend and participate in the mental health counseling program as directed by the Parole Department." The judge rejected defendant's claim of good cause premised on his need to complete his educational training. The judge found defendant completed all classroom hours and passed his written test before he was discharged from the Comprehensive Center. Therefore, in November and December 2009, when Swarer required defendant to engage in counseling at Park Place, defendant had no conflict with his employment training.

The judge further found the facts and circumstances, including defendant's past mental health treatment and his discharge from the Comprehensive Center, collectively supported and justified Swarer's directive that defendant attend mental health counseling. The judge did not agree defendant's rejection of the need for mental health counseling was justified by his discharge from Park Place as inappropriate for defendant's needs. The judge also rejected as incredible defendant's claims he would be at "high risk" if he attended Park Place.

Based on these findings, Judge Vernoia concluded defendant was guilty of violating the requirements of condition A12. He acquitted defendant of the violation of condition A1.

On appeal, defendant argues the verdict is "clearly erroneous" and not supported by the credible evidence of record. He maintains good cause for declining to attend Park Place in December 2009 was shown. We disagree.

In our review of a verdict following a non-jury trial, we will uphold the Law Division's factual findings, if they are supported by substantial, credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2011) (citing State v. Locurto, 157 N.J. 463, 471 (1999)). "[I]f the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." Ibid. (citing State v. Elders, 192 N.J. 224, 245 (2007)). See also State v. Yohnnson, 204 N.J. 43, 62 (2010).

"When an appellate court reviews a trial court's analysis of a legal issue, it does not owe any special deference to the trial court's legal interpretation." Schubert, supra, 212 N.J. at 304 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "[A]ppellate review of legal determinations is plenary." Ibid. (quoting State v. Handy, 206 N.J. 39, 45 (2011)).

The main features of the CSL "are found in the accompanying regulations, in particular N.J.A.C. 10A:71-6.11, which sets forth the general conditions that attach to a person under community supervision for life." Id. at 306. Significant restrictions on a CSL parolee's freedom are imposed. For example, one subject to CSL

cannot freely choose where to reside; he must obtain the permission of his supervising parole officer. N.J.A.C. 10A:71-6.11(b)(5)-(6). Similarly, he must obtain the permission of his parole officer before commencing employment and must notify his parole officer if he loses his employment. N.J.A.C. 10A:71-6.11(b)(14)-(15). He is subject to random drug and alcohol testing, N.J.A.C. 10A:71-6.11(b)(13), as well as a yearly polygraph examination, N.J.A.C. 10A:71-6.11(b)(21). Further, his parole officer may impose a curfew, N.J.A.C. 10A:71-6.11(b)(17), and he is restricted in terms of the use of a computer and the Internet, N.J.A.C. 10A:71-6.11(b)(22). In addition to those general conditions, special conditions may be imposed to meet the individual's particular situation. N.J.A.C. 10A:71-6.11(k). The imposition of those types of conditions significantly restricts the manner in which an individual may pursue his daily life.

[Ibid.]

The provisions of CSL are punitive in nature, not remedial. Schubert, supra, 212 N.J. at 308. "[T]he Legislature specified that individuals serving such a sentence 'remain in the legal custody of the Commissioner of Corrections' during the entire period of their supervision." Id. at 314. The counseling provision of condition A12 is designed to assure the parolee receives necessary determined treatment "to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). Violation of the identified condition is punishable as a criminal offense. N.J.S.A. 2C:43-6.4(d). Finally, removal of the requirement of CSL can be accomplished only by court order after a specified period of time. See N.J.S.A. 2C:43-6.4(c).

In this matter there is no doubt defendant knew he was subject to special conditions required by CSL, and he specifically understood condition A12. He knew he was discharged from the Comprehensive Center for his disruptive behavior and Swarer informed her she determined he needed mental health therapy. Swarer delivered a written notice to defendant directing him to attend intake at Park Place pursuant to A12 of the conditions of his release.

Contrary to defendant's suggestion, his claims of good cause for declining mental health therapy were fully considered and properly rejected by the trial judge. Judge Vernoia found defendant's decision not to attend Park Place was based only on his belief he was not in need of mental health therapy. The judge's rejection of defendant's bald assertion the program posed a high risk to his safety was based on a finding the contention was not credible. We defer to that finding.

Defendant also refutes the judge's finding he was not in school, arguing the dates he gave at trial were mistaken. However, even using defendant's timeline, he finished his training by December 2, and was thereafter available for counseling. Moreover, the judge found defendant was not credible when he changed his testimony on redirect, stating he was in school on December 28, 2009. We have no basis to set aside the rejection of defendant's testimony and the reasonable inferences drawn from the credible evidence. State v. Kay, 151 N.J. Super. 255, 260 (App. Div. 1977) ("[T]he trier of the facts can and should make all fair and legitimate inferences supported by the facts.").

Defendant also maintains the judge failed to find Park Place was "an appropriate . . . counseling or treatment program." He contends this fact was shown by his discharge after a short period of participation. Alternatively he argues he previously attended and completed a program, obviating further participation in similar counseling. We reject these arguments.

At the time Swarer directed defendant's participation in counseling, he was exhibiting aberrant behaviors warranting treatment. His outbursts resulted in dismissal from sex offender specific therapy and heightened Swarer's concern of continued mental health deterioration. Her choice of Park Place was in part because defendant could attend without cost. The subsequent determination defendant did not need extended therapy does not undermine Swarer's evaluation of defendant's needs in November 2009. We do not find the judge's determination in this regard erroneous.

The suggestion that defendant previously completed a mental health counseling program and fully complied with condition A12, precluding a finding he violated that provision, is made for the first time on appeal. We find the argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Following our review, we determine Judge Vernoia's finding that defendant refused to comply with condition A12 is fully supported by the substantial, credible evidence. These facts support the judge's conclusion defendant violated a condition of his special sentence, as set forth in N.J.S.A. 2C:43-6.4(d).

Affirmed.

1 At the time defendant was convicted, N.J.S.A. 2C:43-6.4(a) "directed that a trial court, when imposing a sentence for certain enumerated offenses, 'shall include, in addition to any sentence authorized by this Code, a special sentence of community supervision for life.'" State v. Schubert, 212 N.J. 295, 305 (2012) (quoting N.J.S.A. 2C:43-6.4(a)). The provision was part of the Violent Predator Incapacitation Act, which was one component of a series of laws that are referred to generally as "Megan's Law." See L. 1994, c. 130. In 2003, N.J.S.A. 2C:43-6.4 was amended, effective January 14, 2004, to change "community supervision for life" to "parole supervision for life." The modification did not alter the substance of the law. J.B. v. N.J. State Parole Bd., 433 N.J. Super. 327, 334 n.3 (App. Div. 2013).