IN THE MATTER OF THE CIVIL COMMITMENT OF C.B. (SVP-317-03, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5002-14T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF C.B.,
SVP-317-03.
__________________________
Submitted July 5, 2017 – Decided September 27, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
SVP-317-03.
Joseph E. Krakora, Public Defender, attorney
for appellant C.B. (Patrick Madden, Assistant
Deputy Public Defender, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent State of New Jersey
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Ragner Jaeger, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant C.B. appeals from the June 29, 2015 Law Division
judgment, which denied his motion to remove discharge conditions
imposed under the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38. For the following reasons, we affirm.
I.
A pedophile, C.B. has a history in 1995 and 1996 of sexually
assaulting multiple girls aged four to fourteen on multiple
occasions. See In re Civil Commitment of C.B, Docket No. A-3513-
07 (App. Div. June 23, 2008) (slip op. at 4). C.B. is a self-
described alcoholic who admitted to being sexually aroused by
girls between the ages of twelve and fourteen.
The offenses in 1995 and 1996 involved both attempted and
completed oral and vaginal penetration, and breast and other
fondling. Ibid. On March 27, 1999, C.B. pled guilty to various
charges, including aggravated sexual assault. Ibid. He received
an aggregate ten-year sentence at the Adult Diagnostic and
Treatment Center and is subject to Megan's Law community
supervision for life (CSL). Ibid.
In 2003, after serving his sentence, C.B. was civilly
committed to the Special Treatment Unit (STU) under the SVPA.
Ibid. On June 21, 2004, the court ordered C.B.'s conditional
discharge from the STU. Id. at 5. His discharge conditions
included complying with the rules and regulations of the Division
of Parole (Parole), submitting to random urine and drug testing,
attending sex offender specific treatment and drug and alcohol
treatment, and residing at and complying with the rules of Hill's
Boarding House (Hill). Ibid. In addition, the court ordered C.B.
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to submit to Global Position System (GPS) monitoring as a condition
of discharge.
While C.B. initially complied with his discharge conditions,
he later became non-complaint. Id. at 6. By the spring of 2006,
he regularly began to miss curfew, skip appointments and the
treatment and day programs at Hill, and generally failed to abide
by the conditions of his discharge. Ibid. In August 2006, New
Hope Behavioral Health Center, one of C.B.'s treatment providers,
notified the STU case manager that C.B. had not been attending the
program for two months. Id. at 6-7.
C.B.'s habit of skipping appointments, treatment and
programs, and missing curfew at his boarding home improved
considerably in early 2007, but dramatically worsened by mid- and
late-2007 when he became involved with a girlfriend. Id. at 7.
C.B. engaged in high-risk behavior that heightened his risk to
reoffend, and from September 2007 to October 2007, he attended
none of the programs he was required to attend under his
conditional discharge. Id. at 7-8. In August 2009, C.B. was
found after curfew in a vehicle with his girlfriend, two former
STU residents, and ten bags of marijuana.
With the exception of a brief period between December 12,
2008, and February 17, 2009, C.B. was on conditional discharge
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since 2005. On January 20, 2015, he filed a motion to remove all
of the discharge conditions.
Judge Philip M. Freedman presided over this case since 2005,
and had extensive knowledge of C.B. and his compliance history.
The judge conducted a hearing, at which two psychological experts
testified: Rosemarie Vala Stewart, Ph.D., for the State; and
Timothy P. Foley, Ph.D., for C.B.
Stewart testified that C.B. had substantial prior deviations
from his treatment program and a history of poor decision-making.
She diagnosed C.B. with Pedophilic Disorder, non-exclusive type,
sexually aroused to females, but not limited to incest, mild mental
retardation, intellectual deficits, and fetal alcohol syndrome.
She reviewed C.B.'s nonsexual and sexual offending history and
expressed concern about additional incidents. For example, while
on conditional discharge in 2008 and 2009, C.B. was found through
GPS monitoring to be staying overnight with his girlfriend who had
an underage child in the home; in 2009, C.B. was found in a car
past curfew and marijuana was found in the car. Stewart also
testified that in 2011, C.B.'s attendance was inconsistent for
twelve to eighteen months, and, most recently, he only attended
sex offender therapy twice a month and no longer attended substance
abuse treatment.
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Stewart observed that C.B. had too much unstructured time on
his hands and insufficient time with a professional who could
provide professional supervision. She noted that C.B.'s parole
officer and outpatient therapist were also concerned about him
having too much free time that could allow him to engage in high
risk behavior. These individuals both agreed with Stewart's
conclusion that C.B. needed more supervised structure to prevent
him from rebounding back into trouble. Stewart testified that
C.B. exercised poor judgment, and his free time enabled him to
engage in high risk behavior.
Stewart testified that C.B.'s therapist from an outpatient
sex offender program advised her that C.B. failed to attend group
therapy steadily, and when he attended, did not use the sessions
productively, and on one occasion, seemed inebriated at group
therapy. C.B. admitted to his therapist that he had consumed a
beer, but later told Stewart that he drank the beer "accidentally"
while out with his friends who were drinking beer.
Stewart opined that the totality of the circumstances
indicated the discharge conditions currently in place should
remain, and Parole would be unable to trace C.B.'s whereabouts
without GPS monitoring. Stewart observed that in the past, GPS
monitoring proved valuable, as it revealed C.B.'s deceptive
statements and high risk behavior.
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Stewart opined that C.B. required more accountability and
supervision than CSL could provide, and should remain under
conditional discharge. She emphasized that the additional
structure, support, and supervision the discharge conditions
provided would ensure better case coordination, maintenance of GPS
monitoring, and the opportunity for additional support and
professional contact, which seemed especially important given the
inordinate amount of free time C.B. had.
Stewart also expressed concern over C.B.'s continued
difficulties in complying with conditions and dealing with
potential external factors, such as outside relationships, which
could lead to psychological decompensation and unpredictable
behavior. Stewart concluded that while the discharge conditions
may lessen at some point, some level of supervision was necessary
over the long term due to C.B.'s chronic emotional and intellectual
developmental difficulties.
Foley diagnosed C.B. with Pedophilic Disorder and alcohol
abuse. He concluded, based on the combination of C.B.'s low risk
and significant compliance with conditions, that C.B. no longer
required STU monitoring. Foley focused on C.B.'s ability to
function in daily life, which in his opinion was the main
justification for attempts to commit C.B. in the first place.
Foley commented that C.B. showed the ability to attend treatment,
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pay rent, and form and maintain healthy interpersonal
relationships. When asked about concerns Parole and the STU had
with C.B.'s ability to adjust to independent living, Foley opined
that continued Parole monitoring under CSL would be enough to keep
C.B. out of trouble.
Foley admitted, however, that C.B. was recently reported as
intoxicated and missed curfew on several occasions. Nevertheless,
Foley determined that C.B. should have less structure and
supervision. Foley also testified that C.B. required supportive
counseling and sex offender specific treatment, and this could be
achieved by Parole ordering this as part of CSL.
Foley also admitted that C.B. struggles at times because of
his limited intellectual resources, and these struggles allowed
C.B. to comply with discharge conditions only seventy-five percent
of the time. Having diagnosed C.B. with alcohol abuse, Foley
conceded that while on conditional discharge, C.B. consumed
alcohol, attended therapy while intoxicated, and missed scheduled
treatment sessions. Foley agreed with Stewart that C.B. had too
much unsupervised time on his hands. Foley also conceded that a
GPS monitoring device would help determine C.B.'s location after
curfew and whether he was in violation of the curfew requirement.
Foley acknowledged that someone could take advantage of C.B.
due to his limited intellect. He recommended that structural
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safeguards be implemented for C.B. by ordering more counseling.
In addition to sex offender treatment, Foley recommended that C.B.
engage in supportive counseling sessions because he needed someone
with whom he could develop a therapeutic relationship and who
could assist him in some judgment issues he may encounter.
Ultimately, Foley concluded that C.B. was less than highly likely
to reoffend even if the discharge conditions were removed.
In a June 29, 2015 oral opinion, Judge Freedman found that
C.B. had involved himself in dangerous activities, including
surrounding himself with drugs and alcohol. The judge rejected
Foley's opinion that CSL was sufficient to monitor C.B. Crediting
Stewart's opinion, the judge found that CSL alone was insufficient
for C.B. because it does not offer the same protections as
conditional discharge. The judge determined that continued
supervision was necessary.
Judge Freedman found that C.B. was highly likely to reoffend
if under CSL only. He observed that Parole officers who supervise
individuals on conditional discharge are able to devote more time
and attention to C.B. than he would receive if only under CSL and
C.B. needs that additional time and attention. He reasoned that
C.B. has "a deviant arousal . . . [h]e's been able to control with
the supervision that he has, and . . . continues to need . . .
conditional discharge supervision." He found that if only under
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CSL, C.B. ran the risk of being charged with violations and sent
to jail for the same behavior he exhibited while on conditional
discharge. He also found the record supported continued GPS
monitoring. He entered an order on June 29, 2015 memorializing
his decision, and directing a discharge review occur by November
5, 2015.
II.
On appeal, C.B. first argues the discharge conditions should
be removed because the State failed to show by clear and convincing
evidence that he was highly likely to commit a sexually violent
offense in the foreseeable future. We disagree.
Our scope of review of orders entered under the SVPA is
extremely limited. In re Civil Commitment of R.F., 217 N.J. 152,
179 (2014). The judges who hear SVPA cases generally are
"specialists" and "their expertise in the subject" is entitled to
"special deference." Ibid. (quoting In re Civil Commitment of
T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). "The final
decision whether a person previously convicted of a sexually
violent offense is highly likely to sexually reoffend 'lies with
the courts, not the expertise of psychiatrists and psychologists.
Courts must balance society's interest in protection from harmful
conduct against the individual's interest in personal liberty and
autonomy.'" Ibid. (citation omitted). Our task is to determine
9 A-5002-14T2
"whether the findings made by the trial judge were clearly
erroneous." In re Civil Commitment of W.X.C., 407 N.J. Super.
619, 630 (App. Div. 2009) (citation omitted), cert. denied, 562
U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
We give "the 'utmost deference' to the commitment judge's
determination of the appropriate balancing of societal interests
and individual liberty." In re Civil Commitment of R.Z.B., 392
N.J. Super. 22, 36 (App. Div. 2007) (quoting In re Commitment of
J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. denied,
192 N.J. 296 (2007). In doing so, the ultimate determination of
whether an offender will re-offend "is reserved to the sound
discretion of the trial court." In re Registrant G.B., 147 N.J.
62, 79 (1996).
The SVPA authorizes the trial court to conditionally release
individuals from the STU if, among other things, "the court finds
that the person will not be likely to engage in acts of sexual
violence because the person is amenable to and highly likely to
comply with a plan to facilitate the person's adjustment and
reintegration into the community." N.J.S.A. 30:4-27.32(c)(1).
Conditional discharge is reserved for individuals who are highly
likely to comply and avoid engaging in acts of sexual violence
through a transition plan designed to "facilitate the person's
adjustment and reintegration into the community so as to render
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involuntary commitment as a sexually violent predator unnecessary
for that person." Ibid. "Conditions imposed on the person shall
be specific and shall be for the purpose of ensuring that the
person participates in necessary treatment and that the person
does not represent a risk to public safety." N.J.S.A. 30:4-
27.32(c)(2).
To allow a person who has been committed as a sexually violent
predator to be released without conditions "may, in certain
circumstances, place the safety and security of the public at
risk. This risk of harm to society may be reduced by the person's
mandatory compliance with conditions upon release." In re Civil
Commitment of E.D., 353 N.J. Super. 450, 456-57 (App. Div. 2002).
When imposing conditions, the trial court should consider
conditions "that would substantially reduce the likelihood of
future acts of sexual violence." IMO the Commitment of J.J.F.,
365 N.J. Super. 486, 501 (App. Div.), certif. denied, 179 N.J.
373 (2004). To continue discharge conditions, the State must
show the conditions are required so the person: (1) "participates
in necessary treatment;" and (2) "does not represent a risk to
public safety." N.J.S.A. 30:4-27.32(c)(2).
We have considered C.B.'s argument in the light of the record
and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
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2:11-3(e)(1)(E). We affirm substantially for the reasons Judge
Freedman expressed in his oral opinion. We are satisfied the
record amply supports the judge's findings that C.B. is highly
likely to reoffend if under CSL only, and continuation of
conditional discharge is necessary to assure C.B. participates in
treatment and does not represent a risk to public safety.
III.
C.B. next argues that the court's retroactive application of
the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-
123.91(a)(2)(a), to impose the GPS monitoring condition violated
State and federal constitutional proscription against ex post
facto laws. This contention lacks merits.
The court imposed the GPS monitoring condition under the
SVPA, specifically N.J.S.A. 30:4-27.32(c)(2), not SOMA. Thus,
C.B.'s reliance on SOMA and Riley v. N.J. State Parole Bd., 219
N.J. 270 (2014) (finding SOMA violated State and federal
prohibitions against ex post facto laws) is misplaced.
In addition, our Supreme Court has rejected ex post facto
challenges to the SVPA. See In the Matter of the Civil Commitment
of J.M.B., 197 N.J. 563, 600-01, cert. denied, 558 U.S. 999, 103
S. Ct. 509, 175 L. Ed. 2d 361 (2009). The Court also rejected a
challenge based on the argument that the SVPA unconstitutionally
imposes additional punishment on sex offenders. State v. Bellamy,
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178 N.J. 127, 138 (2003). In each case, the Court emphasized that
the SVPA is not a penal statute. J.M.B., supra, 197 N.J. at 599;
Bellamy, supra, 178 N.J. at 138; see also In the Matter of the
Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010) (reaffirming
that the SVPA is a civil, not a penal statute), cert. denied, 562
U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
Further, Riley is distinguishable. Riley was subject to
lifetime GPS monitoring under SOMA. 219 N.J. at 294. C.B. is not
subject to lifetime GPS monitoring under the SVPA. The SVPA
requires periodic review of C.B.'s conditional discharge status
and discharge conditions, including GPS monitoring. See N.J.S.A.
30:4-27.32(c)(2) (providing that "[i]f the court imposes
conditions for a period exceeding six months, the court shall
provide for a review hearing on a date the court deems appropriate
but in no event later than six months from the date of the order").
Accordingly, there must be a review hearing, at which time the
court will determine whether to continue the conditional discharge
or remove discharge conditions.
Affirmed.
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