IN THE MATTER OF THE CIVIL COMMITMENT OF P.W., SVP-435-06 (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NOT FOR PUBLICATION WITHOUT THE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-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
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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
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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
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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.
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