IN RE: THE CIVIL COMMITMENT OF W.A.

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Superior Court of New Jersey, Appellate Division.

IN RE: THE CIVIL COMMITMENT OF W.A., SVP–183–01.

DOCKET NO. A–3265–12T2

-- January 24, 2014

Before Judges Grall and Accurso.

W.A. is civilly committed 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. He appeals from a January 28, 2013 order that continued his commitment after an annual review required by N.J.S.A. 30:4–27.35. That order continued his commitment until further review on January 2, 2014.   The parties have agreed that this appeal should be determined on the record and oral argument was presented on October 2, 2013.

W.A. contends that the evidence was inadequate to support his continued commitment because of his progress in treatment.   Our review of commitments pursuant to the SVPA is narrow.  In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App.Div.2003).   Under the SVPA, committing judges are “specialists in the area” and therefore their decisions are subject to review for “an abuse of discretion or lack of evidence.”  In re Civil Commitment of T.J.N., 390 N.J.Super. 218, 225–26 (App.Div.2007);  see Cesare v. Cesare, 154 N.J. 394, 412–13 (1998);  In re Civil Commitment of A.E.F., 377 N.J.Super. 473, 493 (App.Div.2005).   A review of this record does not reveal an abuse of discretion.   The decision is adequately supported by the record and is consistent with controlling legal principles.   R. 2:11–3(e)(1)(A).

Pursuant to the SVPA, a person who has committed a sexually violent offense may be civilly committed if he or she suffers from a mental abnormality that “ ‘makes the person likely to engage in acts of sexual violence if not confined in a facility for control, care and treatment.’ ”  In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4–27.26).   It is the State's burden to prove that the individual it seeks to civilly commit “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.”  Id. at 132.   After commitment, annual reviews are required to determine whether the commitment is still required.  N.J.S.A. 30:4–27.35;  N.J.S.A. 30:4–27.32.

Initial commitments and continued commitments under the SVPA require the State to prove that the offender is a sexually violent predator by clear and convincing evidence.  In re Civil Commitment of W.X.C., 204 N.J. 179, 208 (2010), cert. denied, _ U.S. 1702, 131 S.Ct. 1702, 179 L. Ed.2d 635 (2011);  see In re Commitment of J.M.B., 197 N.J. 563, 571–72 (2009), cert. denied, 558 U.S. 999, 130 S.Ct. 509, 175 L. Ed.2d 361 (2009);  W.Z., supra, 173 N.J. at 131–32;  N.J.S.A. 30:4–27.26;  N.J.S.A. 30:4–27.32;  N.J.S.A. 30:4–27.35. A sexually violent predator is a person that “has been convicted ․ [of] a sexually violent offense ․ and 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.

“[O]nce committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with the plan for safe reintegration into the community.”  W.Z., supra, 173 N.J. at 130;  see N.J.S.A. 30:4–27.32;  N.J.S.A. 30:4–27.35.

The availability of treatment outside the STU is relevant to the need for continued commitment.   Release subject to conditions is appropriate if the committed person has a sound plan for conditional release that permits needed treatment under conditions that reduce the risk to a level that does not meet the “highly likely” standard required for commitment.  In re Commitment of J.J.F., 365 N.J.Super. 486, 501–02 (App.Div.), certif. denied, 179 N.J. 373 (2004).

W.A.'s predicate offenses are detailed in this court's opinion affirming W.A.' s consolidated appeal of his initial commitment under the SVPA and his annual review hearing.  In re Commitment of W.A., Nos. A–1591–02, A–6604–02 (App. Div. Nov. 15 2006) (slip op. at 3–4).   W.A. committed a violent sexual assault on a woman in 1993 and pled guilty to multiple charges, which included two charges of aggravated sexual assault.  Id. at 3. While W.A. was released and awaiting sentencing he forced his twelve-year old cousin to submit to vaginal intercourse.  Id. at 3–4.   W.A. pled guilty to three charges of aggravated sexual assault and third-degree endangering the welfare of a child, amongst other charges, based on his sexual assault of his cousin.  Id. at 4–5.   After counting 299 days of time served for the initial charges, W.A. was sentenced to an aggregate ten-year term of imprisonment.  Ibid.

W.A. was temporarily committed to the STU on July 6, 2001, and an order committing W.A. to the STU pursuant to the SVPA was entered on March 13, 2002.  Id. at 4, 9–10.   An order continuing W.A.'s commitment was entered on July 24, 2003.  Id. at 12.   This court affirmed both of those orders in a consolidated appeal.  Id. at 23.   This court also affirmed W.A.'s appeals from two other orders continuing his commitment under the SVPA. In re Commitment of W.A., No. A–3352–10 (App.Div. July 6, 2011);  In re Commitment of W.A., No. A–3493–11 (App.Div. Aug. 29, 2012).

Judge Freedman presided over W.A.'s most recent review hearing on January 14 and 16, 2013.   Dr. Gilman and Dr. Stewart testified for the State.   Dr. Lorah testified on behalf of W.A.

Dr. Gilman is a psychiatrist.   His opinion was based on his recent evaluation of W.A., W.A.'s criminal history, W.A.'s treatment records including evaluations by other psychiatrists and psychologists, polygraph examinations, and treatment plan status reviews at the STU. Dr. Gilman stated that he reviewed these materials, including other psychiatrists' and psychologists' opinions, but he formulated his own opinion.   W.A. was diagnosed with cannabis abuse and antisocial personality disorder by Dr. Gilman.

Dr. Gilman testified that W.A. was placed in a Modified Activities Program (MAP) for probable use of marijuana, which effectively prevented W.A. from entering the Therapeutic Community (TC), which is a part of the treatment process at the STU.1 Dr. Gilman also noted that W.A. engaged in minimization of his first sexual assault and denied that the sexual assault against his cousin was actually a sexual assault.   He stated that W.A. scored a +6 on the Static–99R, which is a predicative test for recidivism and a score of +6 indicates a high risk of recidivism.   Dr. Gilman testified that W.A. remained highly likely to reoffend.

Dr. Stewart is a psychologist and a member of the Treatment Review Progress Committee (TRPC).  The members of the TRPC are psychologists responsible for reviewing the progress and treatment of persons committed to the STU. According to Dr. Stewart's testimony, the TRPC recommended that W.A. remain in Phase III of treatment.   Dr. Stewart diagnosed W.A. with paraphilia NOS, non-consent;  pedophilia rule-out;  cannabis abuse;  and antisocial personality disorder.   Additionally, Dr. Stewart also testified that W.A. scored a +6 on the Static–99R and that W.A.'s denial of any sexual component of the sexual assault against his cousin was counterproductive to W.A.'s treatment.   W.A. suffered setbacks in treatment, which included MAP placements for suspected drug use.   Dr. Stewart testified that W.A. was still highly likely to reoffend, and should remain in Phase III of treatment, although he should attempt to enter the TC.

Dr. Lorah is a psychologist.   He testified on behalf of W.A. and diagnosed him with antisocial personality disorder.   According to Dr. Lorah's testimony, W.A.'s antisocial personality disorder does not create a predisposition to sexual violence and his time in treatment has reduced the effects of this disorder on W.A. Dr. Lorah found that W.A. scored a +5 on the Static–99R, which represented a moderate-high risk of recidivism, but Dr. Lorah stated that he does not blindly follow this test.   However, Dr. Lorah testified on cross-examination that W.A. still denies sexually assaulting his cousin and continues to downplay his initial sexual assault.   It was Dr. Lorah's opinion that W.A. has made significant progress in treatment and was no longer highly likely to reoffend, and that while W.A. would benefit from the TC, he could still receive the appropriate treatment in an outpatient setting.

Judge Freedman reviewed the testimony and reports introduced at the hearing and issued an oral opinion on January 28, 2013.   The judge relied on the fact that all of the mental health professionals diagnosed W.A. with antisocial personality disorder, and that Dr. Stewart diagnosed W.A. with paraphilia NOS non-consent, although the judge indicated that Dr. Stewart's diagnosis of paraphilia was not necessary for W.A.'s continued commitment.

The judge based his determination on other facts as well.   The fact that W.A. has denied and downplayed the sexual assaults that he has committed was seen by the judge as a treatment issue that indicated W.A. was still highly likely to reoffend if released.   Additionally, W.A.'s treatment setbacks were of concern to the judge, especially his MAP placement for suspected drug use and conduct after being placed in MAP status.   He credited the testimony of Dr. Gilman and Dr. Stewart and found that W.A.'s antisocial personality disorder is starting to abate, but at the current time W.A. is highly likely to reoffend.   And the judge did not credit Dr. Lorah's testimony that W.A. could receive outpatient treatment without being highly likely to reoffend.   The judge found that W.A. remained highly likely to reoffend and ordered his continued commitment.

Because the judge's determination is adequately supported by the record and is consistent with the law, we do not find an abuse of discretion that would warrant reversal or modification of the order under review.   See T.J.N., supra, 390 N.J.Super. at 226.

Affirmed.

FOOTNOTES

1.  FN1. According to Dr. Gilman's and Dr. Stewart's testimony, W.A. was in Phase III of treatment.   Dr. Stewart testified that in the STU, Phase IV is typically the last stage of treatment and Phase IV is preceded by time in the TC.

PER CURIAM

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