IN THE MATTER OF THE CIVIL COMMITMENT OF L.O.

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NOT FOR PUBLICATION WITHOUT THE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 L.O., SVP-522-09.

_______________________________

December 7, 2015

Argued November 16, 2015 Decided

Before Judges Sabatino and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-522-09.

Alison Perrone, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Francesco Ferrantelli, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

L.O. is currently committed to the Department of Corrections' Special Treatment Unit (STU) for sexually violent predators. Following his 2015 review hearing, the court entered judgment continuing L.O.'s commitment at the STU and requiring that another review hearing be conducted on April 15, 2016. On this appeal, L.O. contends the State failed to prove by clear and convincing evidence that he suffers from a mental or emotional abnormality which may cause him to reoffend sexually, and that, if released, he is highly likely to commit more acts of sexual violence given his "advanced age," health problems and treatment effect. We affirm the judgment.

The Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-27.28. Sexually violent predators include persons "who ha[ve] been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and suffer[] from a mental abnormality or personality disorder that makes [them] 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. Thus, to have a person committed under the SVPA, the State must prove by clear and convincing evidence three elements: the person has been convicted of a sexually violent offense; the person suffers from a mental abnormality or personality disorder; and, as a result of such mental abnormality or personality disorder, "'it is highly likely that the [person] will not control his or her sexually violent behavior and will reoffend.'" In re Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).1

A person who has been involuntarily committed under the SVPA is entitled to annual review hearings to determine whether he or she remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32a. Here, following the April 30, 2015 review hearing, Judge Freedman determined that the State had met its burden of proving all three elements by clear and convincing evidence. We agree.

The record reveals that L.O., now sixty-one years old, has a considerable criminal record. We recounted his criminal history which began with his arrest for rape of a thirteen-year-old girl when he was sixteen and ended with his convictions for two counts of sexual assault against two victims committed when he was thirty-four in a previous opinion affirming his commitment and need not repeat that history here. In re Commitment of L.O., No. A-6241-09 (App. Div. May 10, 2013) (slip op. at 2-5). L.O. does not dispute that he has committed sexually violent offenses. Rather, he contends the State failed to clearly and convincingly prove at the most recent review hearing that he remains in need of commitment despite treatment.

The State presented two witnesses at L.O.'s review hearing: Dr. Indra Cidambi, a psychiatrist, and Dr. Rosemarie Stewart, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC). Dr. Cidambi diagnosed L.O. as suffering from Unspecified Paraphilic Disorder; Antisocial Personality Disorder; Alcohol Use Disorder, In a Controlled Environment; and Cocaine Use Disorder, In a Controlled Environment.

After detailing L.O.'s offense history, Dr. Cidambi explained the relevance of that history as well as L.O.'s current progress in treatment

my diagnosis is unspecified paraphilic disorder with antisocial personality disorder and along with the substance abuse in here, more and more when you look at all these offenses and the pattern in there, and the violence with his . . . offenses, it clearly points to having paraphilic stimulus for him to go ahead and do what he's doing.

I can't just say that it's just an antisocial personality disorder, he grabbed somebody impulsively and because of doing cocaine that he is offending. You know, just cocaine alone does not make somebody to go sexually offend, but having a paraphilic . . . disorder, that by taking cocaine kind of disinhibits him and increases impulsivity, and you know, makes him complete his sexual act.

. . . .

He started offending very early in his . . . life and then he continued to 34 years of age and even, yeah, until he was incarcerated, so it kind of shows if he were to be out in the community, you know, we don't we don't know if this would [mean] furthermore, more offenses.

And while he is in treatment here, he has been [on] very good behavior and I don't see that he had [any] pornographic material and stuff like that, that doesn't mean that, you know, he is he's ready to go out right now, because he has not addressed any of his fantasies and urges which are very important in . . . in his case and his history. He needs to work on that.

Dr. Cidambi concluded that, despite appellant's current health problems, he would be highly likely to reoffend if released into the community. She explained

I've mentioned here that . . . he has multiple charges, he has the substance abuse, he has been impulsive and opportunistic . . . in offending, and he has high, high impact sexual assaults, and he couldn't stop offending even after he has been sanctioned.

. . . .

He has [had] multiple strokes at the while he has been at the STU in 2011 and he uses . . . a cane to ambulate.

According to the [medical] records . . . so it shows that he has been improving even though he's using the cane. So, the age and the medical issues did not mitigate his risk [below highly likely] at this current time.

Dr. Stewart's opinion was similar to that of Dr. Cidambi. Dr. Stewart testified that after interviewing L.O., she recommended that he remain in phase 3A of treatment. Since that time, however, L.O. has moved to the therapeutic community (T.C.). She explained the importance of the T.C. to someone like L.O. who

has all the hallmarks we would expect of someone who . . . needs to go into the T.C. Some of the things we look for for someone who should be . . . benefiting from the T.C. would be antisocial tendencies or an antisocial personality disorder.

Someone who has been preoccupied sexually, has a . . . long-ingrained history of either a paraphilia or sexual offending or a sexual preoccupation. Someone who has a substance abuse history and the kind of manipulative behaviors that go along with that.

These are the type of personality traits and . . . historical factors we look for in terms of someone who would benefit from the T.C., who would need the T.C. So, [L.O.] has actually all of those in his history, and so the T.C. was . . . a given for him.

Most people are going to go through the T.C. on their road towards discharge here at the STU, and certainly in [L.O's] case, it . . . would be . . . an expectation.

Dr. Stewart reported on L.O.'s progress in treatment since his interview with the TPRC.

[L.O.] has been working well in treatment. He has been compliant with I would say all aspects of . . . treatment that have been offered to him. He hasn't taken any polygraph exams, but I believe he hasn't been scheduled for them yet or offered, they haven't been offered to him.

He has been taking active floors on relevant treatment issues. He gives feedback to other. He participates in modules. He attends self-help groups. He, in fact, facilitated self-help groups at one point before he went into the T.C. He was . . . persistent in making application to the T.C.

And over time, what came out in the interview also with us as well as I believe is reflected in his treatment is that he has . . . grown in treatment. He has become more willing to look at the discrepancies in his history. He has discussed them in detail. He has shown some flexibility in . . . allowing for some of the details of the offenses.

He has taken responsibility for some aspects that he didn t take before. And he has . . . been actively working on the treatment issues that have been presented to him.

He has worked on written documentation. He has a sexual history questionnaire, an autobiography. And he was working on a maintenance contract. He worked his way through the RP modules up until . . . relapse prevention 2B. He took relevant modules during the current review period.

He had some difficulty with the victim empathy module which he discussed with us and which is discussed in the notes, but even in the interview with us, he had been discussing it in group and he said that he would be willing to retake it even if it was the same module facilitator, so he was willing.

Despite his gains in treatment, however, the TPRC did not recommend appellant for Phase Four or Phase Five. Dr. Stewart explained the decision as follows

[W]e believe that he remains at high risk to sexually reoffend. He has a lengthy ingrained history of acting out sexually as well as violently. He has an ingrained substance abuse problem that contributed to . . . the risk of sexual offending. He has antisocial personality disorder. He has many risk factors beyond just the static factors.

He has dynamic factors as well that contribute to . . . his risk of sexual offending, and while we believe that's he making progress in treatment, we don't believe that the treatment effect at this point, while good, . . . has not sufficiently mitigated his risk to for offense.

Finally, Dr. Stewart detailed the effects that appellant's age and medical condition had on her analysis

I mean, his age is taken into consideration in terms of the static[2] well, the static is revised now with the three point reduction. So, he'll be between a four and a five, he'll be in the high moderate, or he - he is most similar to a group of offenders who fall into the high moderate range. I shouldn t say it's [L.O.'s] range.

So, we . . . take that as a starting point, as an estimate for people with similar characteristics. [L.O.] himself, he's 60 years old. He . . . walks with a cane at this point, but he seems otherwise, you know, able to do what he needs to do to get around, to ambulate, to take care of himself.

. . . .

His last offense was in his thirties. I . . . would say that his static risk is . . . possibly appropriate for his age, it's certainly not, if anything I think the static under represents his risk in . . . the sense that he has the additional dynamic factors, and I certainly don't believe that he has less libido than someone who is 60 years old.

Dr. Timothy Foley, a psychologist, testified on behalf of L.O. Dr. Foley diagnosed L.O. with Antisocial Personality Disorder, Alcohol Use Disorder, and Cocaine Use Disorder. He did not diagnose appellant with paraphilia, explaining

I . . . didn't find convincing evidence that the non-consenting acts aspect was preferential. He used force in . . . a series of rapes, but it was to gain compliance. I . . . think that when a female was proximate, he assumed that she was yes and when she said no, he would just override her objection rather than the non-consent being an essential part of the arousal.

Although finding L.O. not highly likely to reoffend, Dr. Foley was of the view that his release should be subject to some conditions

I think he needs conditions. I . . . think that, you know, the standard GPS for a period of time, drug and alcohol . . . is probably a good idea. An approved residence, sex offender treatment, but I would underscore in bold that the substance treatment and monitoring with random urinalysis would be an important element of his discharge plan.

The case in Judge Freedman's view turned on whether L.O. could be conditionally discharged. In answering that question, Judge Freedman found that L.O. suffers from an antisocial personality disorder, and alcohol and drug use disorders which predispose him to acts of sexual violence. The judge noted his disagreement with Dr. Cidambi on two points: the judge found L.O. deserved credit for taking responsibility for his crimes and, that he had internalized some sex offender treatment concepts. Contrary to the opinion offered by Dr. Foley, Judge Freedman found there was sufficient evidence for a diagnosis of unspecified paraphilic disorder. Ultimately, he found appellant to be clearly committable reasoning

I find that he is effective in all three areas, and that he, if released, would have serious difficulty controlling sexually violent behavior and will, in the reasonably foreseeable future, be highly likely to engage in acts of sexual violence. And if he returned to drug use, he would be almost immediately likely to engage in acts of sexual violence. So there's no doubt that, when he's released, he's going to meet the conditions.

But I'm satisfied to credit the testimony of the State's experts. I think it's supported by the record that, at this point, he hasn't gotten quite to that; that he does need to go to the TC, so that an evaluation - a better evaluation of how he has internalized. I think Dr. Cidambi didn't give him as much credit as he's entitled to.

He has internalized some of it, he's improved his behavior. He's improved his - and his treatment has improved to the point where he's been admitted to the TC. And I think that, as the TPRC psychologist, Dr. Stewart, clearly indicated, . . . the TPRC, . . . needs to see how he functions in the TC, in order to be able to really evaluate the extent of his internalization and resolve the question as to whether or not conditions which would help support him in not using drugs and continuing his treatment is required on the outside would be sufficient to reduce his risk below, highly likely.

I'm satisfied that his treatment has not yet done that. I'm satisfied he's well on his way toward it; and that, if he can successfully treat in the TC for a period of time, that he may very well be recommended for discharge planning in the not too distant future.

But at the present time, I think he's still committable for the reasons that I've indicated; and I will, in fact, as a result of that, continue his commitment and set a review date.

Because judges who hear SVPA cases are specialists with expertise in the subject, their decisions are entitled to special deference. R.F., supra, 217 N.J. at 174. In addition, the SVPA judges "'hear and see the witnesses and . . . have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). For those reasons, "an appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). "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).

Judge Freedman's decision to continue L.O.'s commitment is supported by substantial, credible evidence in the record. His decision reflects a comprehensive knowledge of the subject area and the details of L.O.'s offenses and history of treatment at the STU. The judge obviously listened carefully and critically to the testimony offered by the experts, highlighting the points on which he agreed with them as well as when he found their opinions unconvincing in light of the facts. He considered L.O.'s age, physical condition and his progress in treatment in concluding he remains in need of commitment despite treatment. We find no flaw in his carefully reasoned oral opinion of May 6, 2015.

Affirmed.

1 The term "sexually violent offense" refers to offenses enumerated in the SVPA, including aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, and "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26. The term "'mental abnormality' means 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.

2 "The Static-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris et al., Static- 99 Coding Rules Rev.sed-2003 5 (2003). This Court has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" R.F., supra, 217 N.J. at 164 n.9 (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).