IN THE MATTER OF THE CIVIL COMMITMENT OF J.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6155-11T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.R.,

SVP 574-10.

April 23, 2014

Submitted February 5, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-574-10.

Joseph E. Krakora, Public Defender, attorney for appellant J.R. (Nancy C. Ferro, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raska, Assistant Attorney General, of counsel; Timothy P. Malone, Deputy Attorney General, on the brief).

PER CURIAM

J.R. appeals from the December 9, 2011 Law Division order committing him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Appellant is a fifty-six-year-old convicted sexual molester of children with an extensive history of unlawful sexual contact with children. The first noted offense occurred on April 24, 1987, when appellant was twenty-nine years old. Appellant was in his brother's house with his thirteen-year-old nephew, two of his nephew's male friends, and two of his nephew's female friends; one girl was ten years old and the other was eleven years old. Appellant instructed the children to engage in sexual activity with each other. T.B., the ten-year-old girl, stated J.R took her into another room and raped her. He was arrested on April 27, 1987. He pled guilty to aggravated sexual assault, and was sentenced to a twelve-year custodial term.

Appellant appealed and we reversed and vacated his guilty plea as appellant's factual basis did not support his conviction for aggravated sexual assault. State v. [J.R.], No. A-4286-87 (App. Div. Dec. 15, 1989). On remand, he pled guilty to second-degree sexual assault, and was sentenced to time served. This was appellant's predicate sexually violent offense for civil commitment under the SVPA. See N.J.S.A. 30:4-27.26.

In July 1992, appellant was charged with lewdness, which was ultimately dismissed. In March 1994, appellant was charged with aggravated sexual assault. T.H., the wife of appellant's brother, reported appellant climbed into bed with her while she was sleeping and proceeded to have intercourse with her, but he kept his head under the covers so she would believe it was her husband. When she awoke, she yelled, causing appellant to leave. T.H. reported the rape to the police, but appellant was ultimately found not guilty of this charge.

Between March 2002 and May 2002, while on probation, appellant repeatedly forced himself on his girlfriend's thirteen-year-old daughter, K.M. The first incident occurred while K.M.'s mother was at work and she woke up to appellant touching her vagina. He covered her mouth when she tried to yell, and after five minutes of touching, he stopped and threatened to kill her if she told anyone what had happened. Two weeks later, appellant repeated this behavior, but attempted penile penetration; she was able to resist. Two weeks later, he attempted penetration again, and she once again resisted. He again threatened to kill her if she told anyone. K.M did not report the incidents to her mother until about one year later. K.M. then reported the events involving the appellant to the Division of Youth and Family Services during an investigation of an unrelated matter. He was arrested on July 16, 2003.

Appellant was charged with second-degree sexual assault, second-degree attempted sexual assault, fourth-degree criminal sexual contact, third-degree endangering the welfare of a child, and third-degree terroristic threats. In July 2004, a jury convicted him of attempted sexual assault, criminal sexual contact, and endangering the welfare of a child. After an evaluation determined appellant's behavior was compulsive and repetitive, but amenable to treatment, the judge sentenced him to ten years at the Adult Diagnostic Treatment Center (ADTC), with a five-year period of parole ineligibility. Appellant appealed and we affirmed. State v. J.R., No. A-5041-04 (App. Div. July 17, 2006).

Appellant also has a history of non-sexual offenses. In 1984 and 2002, appellant was convicted of unlawful possession of a weapon; in 1976 and 1986, he was charged with possession of marijuana, and entered a diversionary program for each offense; in 1997, he was convicted of burglary and theft by unlawful taking; in 1991 and 1995, he was convicted of criminal mischief; in 1995 and 2002, he was convicted of simple assault; and in 1995 and 1997, he was convicted of resisting arrest. Appellant also had two domestic violence complaints signed against him, one in 1995 and the other in 2002; both complaints alleged harassment and terroristic threats, resulting in the entry of final restraining orders.

The State initiated the present commitment proceeding in June 2010 when appellant was approaching the expiration of his sentence for his 2004 conviction. The petition for civil commitment was supported by clinical certifications prepared by psychiatrists Anasuya Salem, M.D. and Marina Moshkovich, M.D. Each certified appellant "suffers from a mental abnormality (as defined by the Act) or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." Based on the petition and accompanying certifications, the trial court found reasonable cause to commit appellant temporarily to the STU pending a final hearing.

The hearing on the State's petition was held on November 18, 2011 and December 6, 2011. The State presented the testimony of Dean DeCrisce, M.D., a psychiatrist, and Rosemarie Stewart, Ph.D., a psychologist. Appellant presented one witness, his nephew, who was present at the 1987 incident. Appellant elected not to testify, and presented no expert testimony.

Dr. DeCrisce testified that he attempted to interview appellant on three occasions, but he refused each time. Nevertheless, Dr. DeCrisce explained he completed a thorough review of appellant's entire file and treatment records, which enabled him to formulate an independent assessment of appellant, including a diagnosis of his current condition and prognosis. Dr. DeCrisce testified that the sources of information he reviewed were the types of documents normally considered by persons in his profession when conducting risk assessment evaluations and provide valuable background material about the individual. He stated he considered the other experts' diagnostic impressions found in the sources of information, but ultimately formulated his own diagnosis of appellant.

Dr. DeCrisce testified at length regarding appellant's history of sexually violent offenses against children. He diagnosed appellant with Paraphilia NOS, Borderline Intellectual Functioning, Alcohol Abuse, Cannabis Abuse, Personality Disorder NOS with antisocial traits, and possible Pedophilia. Dr. DeCrisce further noted that during appellant's six years of incarceration at the ADTC, he was "seen to have made little progress and had little motivation to explore his criminal behavior, his sexual assaults, [and] that he had a tendency to blame others. He was able to give some input to other individuals but talk very little about his own offenses." He further noted appellant was dropped from several treatment modules, including relapse prevention, because he would not talk about his specific offenses. Dr. DeCrisce concluded the combination of a personality disorder with sexual pathologies made appellant more likely to act on deviant sexual fantasies. He characterized the risk that appellant would sexually reoffend in the foreseeable future as "[h]ighly likely," if not committed for treatment.

Appellant also refused to meet with Dr. Stewart, who likewise completed a review of appellant's records, and formulated her own opinions. She diagnosed appellant with Provisional Paraphilia NOS Non-Consent and Provisional Pedophilia, Impulse Control Disorder, and Personality Disorder NOS with Antisocial Traits. Dr. Stewart also concluded it would be "highly likely" appellant would reoffend sexually, if not committed for treatment.

Appellant's nephew testified regarding the events in 1987 that led to appellant's second-degree assault conviction. The nephew's testimony at the hearing significantly differed from the account he gave immediately after the incident, nearly twenty-five years earlier. He testified that while he could not remember certain parts of his prior statement, he denied his uncle engaged in sexual acts with any of the children. He said the children were experimenting sexually with each other and that his uncle was trying to protect them.

Judge Phillip M. Freedman rendered a comprehensive oral decision on December 9, 2011, which reviewed the procedural and documentary record and case law. He outlined in detail his findings regarding the testimony and opinions of Drs. DeCrisce and Stewart, which he credited, and the testimony of appellant's nephew, which he did not credit. The judge found the State clearly and convincingly proved its case for civil commitment. Based on the expert testimony, Judge Freedman found by clear and convincing evidence that appellant suffers from a mental abnormality in the form of paraphilia and a personality disorder involving antisocial traits, and found

these conditions . . . [affect] him in all three areas, as Dr. Stewart testified, emotionally, cognitively, and volitionally . . .

And if released now, he would have serious difficulty controlling his sexually violent behavior to such a degree that in the reasonably foreseeable future he would be highly likely to engage in acts of sexual violence.

. . . .

. . . He definitely has a high propensity to do it, based on his record, and his lack of treatment effect. So, I think there's no question that he's a dangerous person.

Judge Freedman entered an order on the same date committing appellant to the STU, with a review scheduled for November 1, 2012. This appeal ensued.

On appeal, appellant raises the following arguments:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [APPELLANT] IS A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY CIVIL COMMITMENT.

POINT II

[APPELLANT] AND OTHERS SIMILARLY SITUATED SHOULD BE ALLOWED TO ENTER A PROGRAM INVOLVING THERAPY AND WHICH WOULD ALSO INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

Our Supreme Court has consistently emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, ____ U.S. ____, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." W.X.C., supra, 204 N.J. at 188. These legitimate legislative goals protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. In re Commitment of W.Z., 173 N.J. 109, 125 (2002).

Under the SVPA, an involuntary civil commitment can be ordered following an offender's service of a 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. At the commitment hearing, the State must prove a threat "to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . 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; N.J.S.A. 30:4-27.32(a).

Our review of a trial court's decision in a commitment proceeding under the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009) aff'd, 204 N.J. 179 (2010) (citing In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff'd, 197 N.J. 563 (2009); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). Further, we "must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." Ibid. (citing In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Modification is only proper on appeal when the record reveals a clear abuse of discretion. Ibid. (citing J.M.B., supra, 395 N.J. Super. at 90). Accordingly, the reviewing court has a responsibility to "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58 59 (1996)).

Appellant does not dispute that he met the first requirement for civil commitment, namely that he committed a sexually violent offense. Instead, appellant primarily argues the State did not provide clear and convincing evidence he is likely to sexually reoffend. Appellant argues the opinions of the State's experts are insufficient to satisfy the requirement that he suffers from a mental abnormality or personality disorder, predisposing him to commit acts of sexual violence. He further claims the experts' opinions are deficient because they based their opinions on appellant's past inability to control his behavior, not on a finding of the existence of present predisposing mental abnormalities.

We reject appellant's arguments as without merit. Judge Freedman's findings are well-documented and supported by the record as to all three of the statutory prongs. See N.J.S.A. 30:4-27.26. Both experts diagnosed appellant based on their review of numerous and appropriate sources of information; appellant fails to acknowledge that any alleged deficiencies in the reports and opinions of the State's experts is attributable to his own refusal to speak to either expert. N.J.S.A. 30:4-27.26 defines a "sexually violent predator" as someone who "suffers from a mental abnormality or personality disorder . . ." Contrary to appellant's assertion, the experts did not just diagnose appellant as suffering from a simple antisocial personality disorder. Rather, the State's experts presented clear and convincing evidence that appellant suffers from both a mental abnormality and a personality disorder which affects him emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence; they further found he is highly likely to reoffend if discharged from the STU.

In this matter, Dr. DeCrisce diagnosed appellant with Paraphilia NOS, Personality Disorder NOS with Antisocial Traits, Cannabis Abuse, Alcohol Abuse, Borderline Intellectual Functioning, and possible Pedophilia. Dr. DeCrisce concluded that the combination of a personality disorder and sexual pathologies made it more likely appellant would act on his deviant sexual fantasies. Further, the conditions diagnosed affects appellant emotionally, volitionally, and/or cognitively. Dr. DeCrisce opined appellant would have serious difficulty controlling his sexual behavior if at liberty.

Dr. Steward diagnosed appellant with Provisional Pedophilia, Non-Consent Provisional Paraphilia NOS, Alcohol Abuse, Cannabis Abuse, Borderline Intellectual Functioning, Personality Disorder NOS with Antisocial Features, and Impulse Control Disorder. She opined that his personality disorder meant his behavior is not constrained by law or sense of conscience. She further noted he has a mental abnormality, which predisposes him to sexually reoffend.

Appellant did not present any experts to refute the diagnoses of the State's experts. Judge Freedman found the presented evidence clearly and convincingly established appellant suffers from a mental abnormality within the meaning of the statute, specifically referring to his Personality Disorder with Antisocial Traits and Paraphilia.

Based on the testimony at the hearing, Judge Freedman clearly and convincingly found that appellant has a serious difficulty in controlling his sexually harmful and violent behavior and that there is a high likelihood that he would engage in this kind of activity again within a reasonably foreseeable future if he was not confined at the STU. These conclusions were strongly supported by the credible testimony of the State's two experts, who each opined appellant is likely to reoffend. The information about other, prior acts provided insight into his behavioral pattern over time, and therefore, helped in the diagnostic conclusions in determining the risk of future dangerousness. Both experts noted that appellant had made little progress in his treatment, was dropped from treatment programs including the relapse prevention program, and refused to talk about his offenses; all of this shows he has achieved no mitigation of risk to sexually reoffend through treatment. Additionally, appellant cannot use evidence of his time in incarceration, in a controlled environment, as evidence of rehabilitation.

We also find no merit in appellant's contention that he should be allowed to enter a program involving therapy with lessening restrictions over time. Appellant's argument ignores his failure to meaningfully engage in therapy at the ADTC.

The record shows appellant is a sexually-offending recidivist who has not been deterred by incarceration. The opinions of the State's experts, found credible by the court, support the conclusion appellant falls within the "high risk" category of persons likely to sexually reoffend in the reasonably foreseeable future. Accordingly, we discern no legal basis to disturb the judge's order civilly committing appellant to the STU.

Affirmed.