IN THE MATTER OF THE CIVIL COMMITMENT OF P.W., SVP-435-06 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 11, 2018
• Docket: A-1056-17T5
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1056-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF P.W., SVP-435-06.

________________________________

Argued March 22, 2018 – Decided July 11, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 435-06.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant P.W. (Joseph E. Krakora, Public Defender, attorney).

Marie L. Souied, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney).

PER CURIAM

P.W. appeals from the Law Division's October 11, 2017

judgment, ordering his continued commitment to the Special

Treatment Unit (STU), the secure facility designated for the

custody, care and treatment of sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.

30:4-27.24 to -27.38. For the reasons that follow, we affirm.

P.W. is a forty-nine-year-old man with a significant

history of committing sexual offenses against children dating

back to 1987. In September 1997, P.W. was charged with sexual

assault, child abuse, and endangering the welfare of a child for

touching and fondling a nine-year-old boy's genitals. He pled

guilty to endangering the welfare of a child and was sentenced

to five years at the Adult Diagnostic Treatment Center (ADTC).

Just days before the September incident, on or about August

29, 1997, P.W. walked into a basement where children were

playing and fondled another young boy's genitals, and warned him

that if he told anyone, he would "kick [his] ass." Because of

this threat, the child did not disclose the incident to his

mother until September 15, 1997. Reportedly, the child's sister

was also present and witnessed P.W. touch her brother. In

addition, she reported that P.W. attempted to touch her in her

private area as well. P.W. pled guilty to endangering the

welfare of a child and was sentenced to the ADTC for five years

to run concurrent to the sentence he received from the September

incident.

In 2002, while on parole, P.W. informed a parole officer

that he had just touched a seven-year-old boy on his genitals

2 A-1056-17T5 while in a grocery store. P.W. was arrested and charged with

sexual assault, endangering the welfare of a child and child

abuse. In January 2003, he pled guilty to sexual assault and

was sentenced to five years in the ADTC.

The State petitioned for P.W.'s involuntary commitment

under the SVPA in 2006, and on February 7, 2007, the Law

Division entered a judgment committing P.W. to the STU. A first

review hearing was conducted on April 4, 2008, and P.W.'s

commitment was continued. In 2009, STU entered into a court

ordered discharge plan for an appropriate placement for P.W.,

but he expressed "concerns of reoffending [if he was] placed

back into the community" and the plan was abandoned. Subsequent

hearings have been held each year prior, resulting in P.W.'s

continued commitment.

The most recent review, which is the subject of this

appeal, was conducted by Judge Honora O'Brien Kilgallen on

October 11, 2017. At the hearing, P.W. did not challenge the

fact he committed the requisite sexually violent criminal

offense or suffered from pedophilia, which predisposes him to

3 A-1056-17T5 commit acts of sexual violence.1 The focus of the trial was the

third required finding that P.W. is highly likely to reoffend.

At the hearing, the State relied on the unrefuted expert

testimony of psychiatrist Roger Harris, M.D., who opined that

P.W.'s risk to sexually reoffend remained high. After

interviewing P.W. and reviewing previous psychiatric

evaluations, STU treatment records, and related documents,

Harris prepared a report, which was admitted into evidence

without objection. Similarly, the Treatment Progress Review

Committee's (TPRC) report prepared by Jamie R. Canataro, Psy.D.

1 The Supreme Court has explained the proofs required at the initial hearing and subsequent reviews as follows:

At the commitment hearing, the State must establish three elements: (1) that the individual has been convicted of a sexually violent offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that as a result of his psychiatric abnormality or disorder, "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend[.]" Although the first two elements derive directly from the statute, to comport with substantive due process concerns, this Court interpreted the third statutory element as requiring the State to show that a person is "highly likely," not just "likely," to sexually reoffend.

[In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).]

4 A-1056-17T5 was also admitted into evidence by consent. The doctor prepared

the report after she participated in the TPRC's review and

interview of P.W. Additionally, P.W. testified by making a

formal statement at the hearing.

Harris concluded that P.W. is "highly likely to sexually

reoffend if placed in a less restrictive setting than" STU.

Harris testified to P.W.'s prior sexual offenses, stating that

his evaluation shows "that his arousal is more to boys" than

girls, and that he acts on his arousals despite his prior

incarcerations. According to Harris, P.W. reported that he had

not masturbated to images of young girls in the three months

prior to the evaluation, but did admit to "masturbating to

images of eight to nine-year-old girls once to twice a week for

three months" prior to that, and "three to four times a week

eight months" before. Harris concluded that P.W. "demonstrates

that he is unable to control his sexual arousal," and that it is

"actually alarming[] that he has been at ADTC twice and . . . at

the STU for over a decade, and he is still engaging in those

behaviors that put him at high risk to sexually reoffend."

During his evaluation, Harris also focused on P.W.'s

reported schizophrenia, finding that "[h]e doesn't display

current frank psychotic symptoms" and "[h]e denies hearing

voices . . . [or that] people are trying to hurt him." The

5 A-1056-17T5 doctor noted that it has been difficult for evaluators to

"understand whether he has an autism spectrum disorder or

whether he has a schizophreniform disorder."

Based on P.W.'s "self-report of having an arousal to girls

and boys," and his actions due to his arousals, "resulting in

both arrest and convictions," Harris found that P.W. "does not

have the necessary volitional control," of his "sexual arousal

pattern." Harris diagnosed P.W. with pedophilic disorder and

schizophrenia. He explained that there is "probably a secondary

characteristic of the schizophrenia [that] does interfere with

some of his ability to use treatment[,]" such as being socially

awkward and his poor interpersonal skills. Harris also gave

P.W. a score of six on the Static-99R,2 indicating an above

average risk to sexually reoffend.3

2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., 217 N.J. at 164 n.9. Our Supreme 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.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).

3 At the hearing, Harris pointed out a discrepancy in his report where he incorrectly stated that P.W.'s score is a three, when in fact it was a six.

6 A-1056-17T5 Canataro's report that was prepared after the TPRC examined

P.W. on April 18, 2017, recommended that, despite P.W.'s more

than ten years at the STU, he remain in Phase Three A, an early

treatment phase. Based on a review of P.W.'s sexual offense

history, clinical interview, and STU treatment notes, the TPRC

concluded that P.W. "continues to demonstrate mediocre treatment

gains[,]" and should continue with his current treatment program

as "he remains highly likely to sexually offend if not confined

to a secure facility such as the STU at this time."

Canataro explained that even though the "STU entered into a

court order to continue" a discharge plan to release P.W. in

2009, P.W. "consistently voices concerns of reoffending should

he be placed back into the community," and thus, still remains a

high risk of sexually reoffending. According to the report,

P.W. should continue with his treatment plan, incorporating

programming that addresses "his interpersonal style . . . to

understand how others perceive him[,]" and his "emotional

regulation concepts."

In his statement to the judge, P.W. testified that as a

child he was diagnosed with ADHD and hyperactivity, and as of

2016, he was diagnosed with autism. He spoke at length about

his request to set up a structure and receive additional

resources once he left ADTC, but claimed that the Department of

7 A-1056-17T5 Human Services would not help him. P.W. further stated that

when he realized he was a few months from being released, he

"became a little alarmed because [he] was

scared . . . personally of being put back into that build up

that [he] was in," knowing that parole and SSI could not assist

him with his needs. He stated that his therapist told him that

"even though [he did not] fit the criteria for commitment," he

was going to recommend that he be committed to Ann Klein, "where

they can take the responsibility of helping [him] to set up the

things in which" he needed on the outside. Following this

discussion, P.W. stated that he never heard anything else

regarding commitment, and instead he received paperwork to sign,

believing he would be discharged.

P.W. claimed that the main reason he was not discharged in

2007, at his first hearing, was because he did not have the

proper support set up on the outside for his release. According

to P.W., there was an agreement with the Attorney General to

discharge him because they believed that he "wasn’t a high risk

as long as [he] had the structured support" on the outside. He

pointed out that over the past eleven years since being

committed, he has "tried to explain [that he] need[ed] the

support, and they [kept] saying there is no support . . . ."

P.W. clarified the type of support he needed, stating "when I am

8 A-1056-17T5 out there I can still remain in contact with . . . people in the

Annex . . . so I can talk with them . . . [and] I can have

emotional support, people to talk to when I’m feeling alone, or

to get advice for when I need it." He admitted that he knows he

has issues, but claimed that he feels as though the "criteria is

so stacked up against [him,]" and that he is "being punished

more because of [his] mental health problems [than] because of

[his] sex offending problem."

P.W. submitted to the court a "realistic" discharge plan

that he believed would better suit his needs. He stated that

"even if [he] can’t be released to the streets," he wanted to be

"released to someplace which is less restrictive where they"

could help him transition back to the community. He told the

court that he "was supposed to get out when [he] was about 37"

and was only sentenced to five years, but "now [he has done]

over 16 years for [his offense]."

In an oral opinion placed on the record after the

presentation of the evidence, Judge O'Brien Kilgallen found by

clear and convincing evidence that P.W. "has been convicted of a

sexual violent offense," that he "suffers from a mental

abnormality or personality disorder, namely pedophilia," that in

tandem affect him "cognitively, emotionally and volitionally,

which predisposes him to sexual violence" and causes him "to

9 A-1056-17T5 have serious difficulty controlling sexually violent behavior."

The judge noted that the TPRC report found that P.W. should

remain in Phase Three of treatment, and that "he is an

individual who despite his time exposed to sex offender

treatment, his deviant sexual arousal remains strong, and he

chooses to continue to behaviorally reinforce this arousal at

times."

Judge O'Brien Kilgallen rejected P.W.'s argument regarding

the third prong, finding that he offered no opposition to

Harris's expert conclusion that P.W. is "highly likely to

sexually reoffend and is in need of confinement." The court

concluded that P.W. should remain confined at the STU. On the

same day, Judge O'Brien Kilgallen entered a memorializing order

continuing P.W.'s commitment and this appeal followed.

On appeal,4 P.W. argues Judge O'Brien Kilgallen erred in

concluding that the State met its burden of proof. P.W.

contends that the judge erred in finding that the State

demonstrated that he is highly likely to reoffend because the

judge did not take into consideration "P.W.'s limited sex

offending history" or his treatment over the past decade. P.W.

4 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument.

10 A-1056-17T5 relies on In re Civil Commitment of V.A., 357 N.J. Super. 55

(App. Div. 2003), arguing that the judge should have considered

whether someone "could be less than highly likely with an

appropriate conditional discharge plan" before continuing their

commitment in "the most restrictive environment." He contends

that he "should be afforded the opportunity to participate in a

lesser strict environment through the process of conditional

discharge." We reject these arguments and affirm.

"The scope of appellate review of a commitment

determination is extremely narrow. The judges who hear SVPA

cases generally are 'specialists' and 'their expertise in the

subject' is entitled to 'special deference.'" R.F., 217 N.J. at

174 (citations omitted).

"The SVPA authorizes the involuntary commitment of an

individual believed to be a 'sexually violent predator' as

defined by the Act. The definition of 'sexually violent

predator' requires proof of past sexually violent behavior

through its precondition of a 'sexually violent offense.'" In

re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation

omitted). It also requires that the person "suffer[] from a

mental abnormality or personality disorder that makes the person

likely to engage in acts of sexual violence if not confined in a

11 A-1056-17T5 secure facility for control, care and treatment." Ibid.

(quoting N.J.S.A. 30:4-27.26).

"[T]he mental condition must affect an individual's ability

to control his or her sexually harmful conduct." Ibid.

"Inherent in some diagnoses will be sexual compulsivity (i.e.,

[pedophilia]). But, the diagnosis of each sexually violent

predator susceptible to civil commitment need not include a

diagnosis of 'sexual compulsion.'" Id. at 129.

The same standard that supports the initial involuntary

commitment of a sex offender under the SVPA applies to the

annual review hearing. See In re Civil Commitment of E.D., 353

N.J. Super. 450, 452-53 (App. Div. 2002). As noted earlier, in

either case, "'the State must prove by clear and convincing

evidence that the individual has serious difficulty controlling

his or her harmful sexual behavior such that it is highly likely

that the person will not control his or her sexually violent

behavior and will reoffend.'" W.Z., 173 N.J. at 133-34.

As the fact finder, while "[a] trial judge is 'not required

to accept all or any part of [an] expert opinion[,]'" he or she

may "place[] decisive weight on [the] expert." R.F., 217 N.J.

at 156, 174 (second alteration in original) (citation omitted).

Furthermore, "an appellate court should not modify a trial

court's determination either to commit or release an individual

12 A-1056-17T5 unless 'the record reveals a clear mistake.'" Id. at 175

(quoting In re D.C., 146 N.J. 31, 58 (1996)).

We find no clear mistake on this record. The parties did

not dispute, and the record amply supports, Judge O'Brien

Kilgallen's finding that P.W. had been convicted of a sexually

violent offense and suffers from pedophilia, "a mental

abnormality or personality disorder," satisfying the first two

predicates for continued commitment under the SVPA. See e.g.,

In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014); see

also R.F. 217 N.J. at 173. Based on unrefuted credible expert

testimony, the judge's finding as to the third predicate that he

was highly likely to reoffend was supported by evidence of

P.W.'s disorders, behavior and lack of treatment progress. The

judge's determination, to which we owe the "utmost deference"

and may modify only where there is a clear abuse of discretion,

In re J.P., 339 N.J. Super. 443, 459 (2001), was in all respects

correct. Contrary to P.W.'s assertions, this was not a case

where the State was "unable to justify the continued confinement

of the committee based on the progress the committee" has made

so as to warrant "intermediate levels of restraint." V.A., 357

N.J. Super. at 64 (quoting E.D., 353 N.J. Super. at 456).

Affirmed.

13 A-1056-17T5