IN THE MATTER OF THE CIVIL COMMITMENT OF I.O., SVP-440-06 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1807-16T5
IN THE MATTER OF THE
CIVIL COMMITMENT OF
I.O., SVP-440-06.
__________________________
Argued March 22, 2018 – Decided July 9, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
440-06.
Joan D. Van Pelt, Designated Counsel, argued
the cause for appellant I.O. (Joseph E.
Krakora, Public Defender, attorney).
Lauren S. Kirk, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Gurbir S. Grewal, Attorney General,
attorney).
PER CURIAM
I.O. appeals from the October 26, 2016 order of the Law
Division, continuing his 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.
At the time of his review hearing, I.O. was approximately
fifty-eight years old. The predicate offenses for which I.O. was
committed to the STU arose out of his 1992 sexual assault upon an
eleven-year-old girl that he kissed and fondled on her buttocks.
On another occasion, I.O. exposed himself to the victim and her
friends. At the time he committed these offenses, I.O. was out
on bail in connection with pending charges from 1991 for two counts
of sexual assault, criminal sexual contact, and aggravated sexual
assault committed upon a seventeen-year-old and a six-year-old.
Following his convictions, he received a seventeen-year aggregate
sentence and I.O. was committed to the Adult Diagnostic Treatment
Center (ADTC). In 2006, he was committed to the STU, after he had
been terminated from the ADTC and transferred to state prison, and
his commitment continued following periodic review hearings. See
In re Civil Commitment of I.O., No. A-4270-09 (App. Div. Sept. 17,
2010).
The most recent review, which is the subject of this appeal,
was conducted by Judge Philip M. Freedman on October 18 and October
26, 2016. At the hearing, the State relied upon the expert
testimony of psychiatrist Dr. Indra Kumar Cidambi and psychologist
Dr. Rosemarie Vala Stewart, who is a member of the STU's Treatment
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Progress Review Committee (TPRC). Both experts opined that I.O.'s
risk to sexually reoffend remained high. After interviewing I.O.
and reviewing previous psychiatric evaluations, STU treatment
records, and related documents, Stewart and Cidambi prepared
reports, which were admitted into evidence. Various treatment
notes and other records were also admitted into evidence. I.O.
also testified at the hearing.
Cidambi concluded that I.O. met the criteria of a sexually
violent predator and was "highly likely to sexually re-offend if
not confined in a secure facility for control, care and treatment"
because he has not mitigated his risk. Based on I.O.'s "index
offense and his admission to other uncharged offenses, [and his]
report[] that he was still attracted to young children[,]" Cidambi
diagnosed him with pedophilic disorder, sexually attracted to
females, non-exclusive type. She testified that she also diagnosed
I.O. with other specified paraphilic disorder, non-consent, "[f]or
sexually offending against victims who cannot consent[.]" She
testified that I.O. "meet[s] the criteria for frotteuristic
disorder" because he has "a history of rubbing against adult women
in a crowded area, say a subway station, and touching and rubbing
against non-consenting persons[.]"
According to Cidambi, I.O. also has traits of antisocial
personality disorder based upon his history of "sexually
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offending" and his "fail[ure] to conform to social norms[,] . . .
disregard for the safety of others, law-breaking behavior, [and]
impulsive [behavior], [while showing] no remorse." She pointed
to I.O.'s infractions while at the STU, which included I.O. being
"placed on [modified activities program status] several times[,]
. . . one time for [making] threat[s] and then he has had
pornographic material in his possession." She stated that having
traits of antisocial personality disorder combined with the sexual
pathologies she diagnosed I.O. with "increases the risk of
reoffending. And it also provides for impulsivity and disregard
for the safety of others[.]"
Further, Cidambi found evidence of I.O. having cocaine use
disorder in a controlled environment, opioid use disorder in a
controlled environment, and cannabis use disorder in a controlled
environment based upon his history of substance abuse. She
testified that adding the substance abuse problems to I.O.'s
already increased risk, "definitely increases by increasing the
disability -- disinhability [sic] and the impulsivity and makes
them take -- make poor judgment and reoffend." According to
Cidambi, these conditions do not spontaneously remit, and it is
only "through treatment [that] one can learn to control the
impulses caused by these disorders[.]"
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She gave I.O. a score of five on the Static-99R,1 indicating
an above average risk to sexually reoffend. However, she opined
that his "score underestimates his current risk to sexually re-
offend[.]" She concluded that there was a "high risk" that I.O.
would reoffend, based upon his "lack of behavioral control," lack
of progress in treatment, and delusion "about the offenses that
he has done" to the point that "he doesn’t consider himself as a
sex offender. And he still has this arousal towards young
girls[.]"
Stewart testified that she along with the other members of
the TPRC that evaluated I.O. unanimously recommended in their
report that I.O. "remain in phase two of treatment[,]" because
although I.O. "does attend his process group [and] does attempt
modules, . . . he struggles to address core issues." She noted
the several modules and treatment groups I.O. has failed, or had
to repeat, as well as the ones he withdrew from.
1
"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." In re Civil
Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citation
omitted). 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)).
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Describing her interview with I.O., Stewart stated, "There
was a significant amount of hostility . . . . [I.O.] talked about
anger at the system, anger at the institution, anger at this writer
for previous evaluations, talking about . . . wanting to shoot at
-- shoot everyone." However, according to Stewart, I.O. "actually
said . . . that he is here because he doesn’t know if he would
offend if he would leave." In discussing his plans if he were
released, I.O. told Stewart that he intended to leave the country
to go to Venezuela, which according to Stewart, would prevent any
possible "mitigation of risk" that supervision or any conditions
placed on his discharge would provide.
Stewart diagnosed I.O. with "[p]edophilic [d]isorder
(sexually attracted to females, nonexclusive type)[, o]ther
[s]pecified [p]araphilic [d]isorder (non-consent and
hebephillia)[, f]rotteuristic [d]isorder (in a controlled
environment)[, o]ther [s]pecified [p]ersonality [d]isorder
(antisocial, paranoid, and borderline features)[,]" as well as
substance abuse disorders. She testified that I.O.'s "risk is
exacerbated with the personality diagnosis, especially including
antisocial features, because a person doesn’t feel constrained by
concern for others, by the law, by authority, and . . . feels
freer and without conscience to act on their urges and impulses."
She added that his substance abuse "can disinhibit [him] and it
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can impair [his] judgment[,]" which worsens the problem. Stewart
concluded that I.O. did not have "enough treatment to adequately
be able to control [his] impulses[,]" and that "these conditions
[do not] spontaneously remit[.]" Therefore, "if not recommitted
to the STU for further treatment[,]" she found I.O.'s "risk to
sexually reoffend" to be "high."
I.O. testified2 that his sexual offenses were attributable to
a head injury that he suffered in a motor vehicle accident. He
denied having any sexual contact with a six-year-old and explained
that he only pled guilty to that offense because of the ineffective
assistance of his counsel. He admitted to having sex with a
seventeen-year-old, but stated that she initiated the interaction.
I.O. then spoke at length regarding his sexual offenses against
an eleven-year-old, claiming that he was falsely accused of his
offenses against her, despite having pled guilty to them as well.
In an oral decision placed on the record on October 26, 2016,
Judge Freedman detailed I.O.'s prior criminal history and events
since his original admission to the STU, recounted the testimony
before him, and detailed I.O.'s treatment record at the STU. He
found that I.O. "version [of the events resulting in his
convictions] was not credible" because "[h]e pled guilty. He
2
I.O. began his testimony by requesting a jury trial, which the
judge denied.
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admitted to the police, [and] gave a detailed statement, and his
story is incredible[.]" According to the judge, I.O. had also
previously "made many admissions over the years consistent with
his offending in these cases." The judge noted that he found both
of the State's experts to be credible.
After articulating the applicable legal principles, Judge
Freedman determined that there was clear and convincing evidence
that I.O. has been convicted of sexually violent offenses, which
bring him within the purview of the SVPA, and that he
suffer[s] from . . . mental abnormalities in
the form of pedophilia and a paraphilia, as
well as a personality disorder that, in
combination, these affect him emotionally,
cognitively and volitionally to such a degree
as to predispose him to engage in acts of
sexual violence, as his record and his many
admissions that were relied on by these
doctors show, and that, if released, he would
have serious difficulty controlling his
sexually violent behavior and will in the
reasonably foreseeable future . . . be highly
likely to engage in acts of sexual violence.
On the same date, Judge Freedman entered a memorializing order
continuing I.O.'s commitment, and this appeal followed.
On appeal,3 I.O.'s arguments are twofold. He contends that
he "should have been granted a jury trial and second, that the
3
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.
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State failed to meet its burden that he continued to be highly
likely to re-offend as a sexually violent predator" because "the
State’s evaluators and the [trial judge] in turn failed to consider
his good behavior in the institution and the severity of his
medical condition as it impacts on his likelihood to re-offend."
We conclude from our review that I.O.'s arguments "are without
sufficient merit to warrant discussion in a written opinion[.]"
R. 2:11-3(e)(1)(E). Suffice it to say that we have previously
determined that there is no right to a jury trial in a SVPA
commitment hearing, see In re Civil Commitment of J.H.M., 367 N.J.
Super. 599, 607 (App. Div. 2003), and I.O. has not persuaded us
to abandon our precedent.
Turning to I.O.'s second contention, and considering our
"extremely narrow" scope of review, which requires that we give
"special deference" to a trial judge's determinations in these
matters, R.F., 217 N.J. at 174 (citations omitted), we discern no
"clear mistake[,]" id. at 175 (citations omitted), in Judge
Freedman's determination that the State proved by clear and
convincing evidence that I.O. suffered from a mental abnormality
or personality disorder that predisposed him to sexual violence
and warranted his commitment. We affirm substantially for the
reasons expressed by Judge Freedman in his thorough oral decision.
Affirmed.
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