IN THE MATTER OF THE CIVIL COMMITMENT OF V.A.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5247-14T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF V.A.M., SVP-201-01.

____________________________________

December 1, 2015

Argued November 16, 2015 Decided

Before Judges Accurso and O'Connor.

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 (Joseph E. Krakora, Public Defender, attorney).

Cindy S. Collins, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

V.A.M. appeals from a June 29, 2015 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA) N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The predicate offense for which forty-nine-year-old V.A.M. is currently committed occurred on April 9, 1992, when he anally penetrated a twelve-year-old girl. As a result, V.A.M. ultimately pled guilty to one count of aggravated sexual assault, and was sentenced to a fifteen-year prison term, with a five-year mandatory minimum. Although he had been found to be a repetitive and compulsive sex offender and eligible for sentencing to the Adult Diagnostic and Treatment Center (ADTC), in accordance with the terms of the plea agreement he was sentenced to State prison.

V.A.M. committed the predicate offense while on parole for a prior sexually violent crime. Specifically, on July 20, 1988, V.A.M. ordered a six-year-old girl to pull down her pants and underwear, and he then ejaculated between her legs. As a result of this incident V.A.M. pled guilty to one count of second-degree sexual assault and, on February 16, 1989, was sentenced to a ten-year prison term. He was released on parole on February 14, 1991; one of the conditions of parole was that he attend sex offender treatment. He committed the predicate offense during a period when he was receiving treatment.

Following completion of his sentence for the predicate offense, the State successfully obtained an order on September 25, 2001, for V.A.M.'s commitment under the SVPA. Despite periodic challenges to being confined under the SVPA, V.A.M. has remained committed since. The present appeal arises out of V.A.M.'s most recent review hearing held on June 29, 2015.

At this hearing the State called psychiatrist John Zincone, M.D., and psychologist Laura Carmignani, Ph.D. Appellant neither testified nor called any witnesses on his own behalf. Dr. Zincone testified that appellant declined to be interviewed and, thus, the psychiatrist prepared his report based upon the available records and treatment notes. His report was admitted into evidence without objection.

Dr. Zincone diagnosed V.A.M. with pedophilic disorder because he has experienced intense sexual attraction to prepubescent girls for more than six months and acted on those urges, as evidenced by his sexual assault upon the six- and twelve-year-old girls. Pedophilic disorder is a chronic condition that requires consistent treatment.

Although he does not have major depression, V.A.M. does have "other specified depressive disorder," which has manifested itself in the form of mood swings and "dark moods." Appellant has refused to submit to a psychiatric evaluation, thwarting the issuing of prescription medication that might improve his mood. While this form of depression would not cause him to reoffend per se, treatment records reveal V.A.M. uses alcohol to control stress and improve his mood. Significantly, when he committed the two sexual offenses, he was under the influence of alcohol. Moreover, he uses sex to cope with stress.

According to Dr. Zincone, substance abuse can be a significant risk factor for sexual reoffending because substances can lead to disinhibition, which in turn can induce impulsive behavior. Dr. Zincone found V.A.M. has "alcohol use disorder, severe," even in a controlled environment. Although he has attended a substance abuse process group, he has not participated in a twelve-step recovery program, such as Alcoholics Anonymous.

V.A.M. was also diagnosed with "other specified personality disorder" with antisocial and narcissistic traits. Those with these traits are at risk for sexual recidivism because not only are they impulsive, but also lack empathy, disregarding the rights of others in their quest to satisfy their sexual needs. V.A.M. has reported that he has remorse for what he did to his first victim, but not for the second one, expressing skepticism that what he did to the twelve-year-old girl was "that bad." Dr. Zincone pointed out that the fact appellant re-offended when on parole supervision reveals he has a difficult time controlling his feelings of arousal.

As for his progress in treatment, V.A.M. sees himself as a victim and does not take treatment seriously. At the time of his evaluation, he was in Phase 3A, but was having difficulty exploring why he committed the sexual offenses, his need to use sex as a coping mechanism, and his deviant sexual feelings. He also was not reporting his sensations of arousal and, as of October 2014, he was still being aroused by young girls. In April 2015, appellant reported to others that he did not know whether he would be safe in the community, suggesting he was not confident he would be able to abstain from sexually offending others.

In the final analysis, Dr. Zincone concluded appellant suffers from a mental abnormality or personality disorder that affects him either emotionally, cognitively or volitionally and predisposes him to commit acts of sexual violence. The psychiatrist also found V.A.M is highly likely to sexually reoffend if not kept under the care, control, and treatment of a secure facility such as the STU.

Dr. Carmignani's testimony was essentially consistent with Dr. Zincone's. She, too, ultimately concluded that "appellant presents a high risk to recidivate if not confined to a secure facility such as the STU."

The trial court credited both of the State's experts, finding them to be "extremely credible," and found the State proved by clear and convincing evidence that appellant suffers from a mental abnormality or personality disorder that does not spontaneously remit, is predisposed to sexual violence, has "difficulty controlling his sexual violence," and is highly likely to engage in further acts of sexual violence if not confined to a secured facility for control, care, and treatment.

Pursuant to 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 an 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.]

To commit or continue to commit an individual to an 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.

Here, the trial court correctly applied these standards to the evidence adduced at the June 29, 2015 review hearing. The unrefuted testimony of both of the State's experts clearly demonstrates that appellant continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released.

As the Supreme Court recently emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." Id. 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 a trial judge's findings from commitment hearings, not only in recognition of the 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 cannot modify the SVPA trial court'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 these deferential principles here, we affirm the judgment directing appellant's continued commitment. The trial court's conclusions are properly grounded in both the evidentiary record and the applicable law.

Affirmed.