Opinion
DOCKET NO. A-0340-13T2
10-23-2015
IN THE MATTER OF THE CIVIL COMMITMENT OF B.W.N., SVP-670-13.
Charles H. Landesman, Designated Counsel, argued the cause for appellant B.W.N. (Joseph E. Krakora, Public Defender, attorney; Mr. Landesman, on the brief). Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent, State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Raksa, of counsel; Joel Clymer, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Maven. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-670-13. Charles H. Landesman, Designated Counsel, argued the cause for appellant B.W.N. (Joseph E. Krakora, Public Defender, attorney; Mr. Landesman, on the brief). Melissa H. Raksa, Assistant Attorney General, argued the cause for respondent, State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Raksa, of counsel; Joel Clymer, Deputy Attorney General, on the brief). PER CURIAM
Appellant B.W.N. appeals from an August 26, 2013 order continuing his involuntary commitment to the Special Treatment Unit (STU) under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
The STU is the secure custodial facility designated for the treatment of persons in need of involuntary civil commitment pursuant to the SVPA. --------
On appeal, B.W.N. raises the following points:
POINT I
THE STATE FAILED TO COMPLY WITH N.J.S.A. 30:4-27.30b WHICH REQUIRES THE TESTIMONY OF A PSYCHIATRIST ON THE PERSON'S TREATMENT TEAM WHO CONDUCTED A PERSONAL EXAMINATION OF THE PERSON NOT MORE THAN FIVE CALENDAR DAYS PRIOR TO THE COURT HEARING. (Not Raised Below).
POINT II
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [APPELLANT] HAS A PRESENT MENTAL ABNORMALITY OR PERSONALITY DISORDER THAT MAKES HIM LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE IF NOT CONFINED IN A SECURE[D] FACILITY FOR CONTROL, CARE AND TREATMENT.
POINT III
[THE JUDGE'S] FINDING THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT [APPELLANT] IS HIGHLY LIKELY TO ENGAGE IN FURTHER ACTS OF SEXUAL VIOLENCE IF NOT CONFINED TO A SECURE[D] FACILITY WAS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED BY THE EVIDENCE.
POINT IV
CIVIL COMMITMENT OF [APPELLANT] AMOUNTS TO AN INDEFINITE EXTENSION OF HIS ORIGINAL SENTENCE AND IS PUNITIVE AND UNLAWFUL.
We conclude that the State demonstrated, by clear and convincing evidence, B.W.N. has a mental abnormality or personality disorder which makes it "highly likely that he will not control his . . . sexually violent behavior and will reoffend" in "the reasonably foreseeable future." In re Commitment of W.Z., 173 N.J. 109, 131-32 (2002).
In 1978, B.W.N. was convicted of the rape of a thirteen-year-old child, forcible breaking and entering, and weapons charges. He was sentenced to an aggregate term of thirty years' imprisonment. While on parole, B.W.N. was arrested in Atlantic City for assaulting and attempting to restrain a woman with handcuffs. This crime, occurring on October 17, 1985, involved a woman with whom B.W.N. had allegedly agreed to pay for sex. When she balked after seeing that he had handcuffs, B.W.N. hit her, pulled her hair, and choked her as she tried to get away.
The police investigation of the October 17 incident revealed that B.W.N. fit the description of an offender from three other sex-related crimes involving handcuffs. The earliest incident occurred sometime between July and August, 1985, and involved a pregnant twenty-two-year-old woman who B.W.N. drove to a motel for sex. He identified himself as a Newark police officer and showed a badge. As he began to have sexual intercourse with her, he tried to handcuff her. When she struggled, he punched her in the stomach. On October 3, B.W.N. took another woman to a motel for sex. He handcuffed her and placed a knife to her throat. When she broke loose, he punched her in the face and handcuffed her again. He robbed her of $250 and her clothes. On October 10, B.W.N. took a seventeen-year-old girl to a motel to drink beer with her. When he tried to remove the woman's sweater and bra, she tried to leave. Though he initially prevented her from leaving, he eventually let her go.
B.W.N. was separately indicted on each incident and charged with various counts of robbery, aggravated assault, armed robbery, possession of a weapon, possession of a weapon for unlawful purposes, possession of a weapon by a convicted person, burglary, and criminal restraint. A jury found B.W.N. guilty of charges contained in three indictments, and he pled guilty to the fourth. After appeals, B.W.N. was resentenced in 1988 on all four convictions to an aggregate twenty-year prison term with a seven-year period of parole ineligibility.
On March 22, 2013, the State filed a petition under the SVPA, seeking to involuntarily commit B.W.N. The petition included the requisite certified clinical certificates of two psychiatrists, Anasuya Salem, M.D., and Alexander Kushnier, M.D. Both certified that B.W.N. was a sexually violent predator. A Law Division judge entered an order for temporary civil commitment to the STU. The final hearing, initially scheduled for April 12, 2013, was conducted on July 25 and August 23, 2013. The State presented testimony from Dr. Michael Kunz, a psychiatrist, and Dr. Nicole Paolillo, a psychologist and member of B.W.N.'s Treatment Progress Review Committee (TPRC) at the STU. Dr. Timothy P. Foley, a psychologist, testified on behalf of B.W.N.
Kunz based his report and testimony on his two hour and thirty-five minute interview of B.W.N., as well as his review of numerous police reports, superior court and parole board decisions, and psychological evaluations. Kunz noted that he considered B.W.N.'s 1985 offenses as sexual offenses although they did not result in sexual assault charges or convictions.
Kunz diagnosed B.W.N. with both Polysubstance Dependence and Antisocial Personality Disorder (APD). He considered diagnosing B.W.N. with a sexual pathology, but instead explained that B.W.N.'S behavior stemmed from his APD "rather than a specific paraphilia." He noted that B.W.N. did not acknowledge sexually assaulting any of his victims and demonstrated no remorse for his actions. Kunz opined that, based upon his score of eight on the Static-99R assessment, B.W.N. was a high risk to sexually reoffend if not confined for treatment.
Paolillo interviewed B.W.N. on July 12, 2013, for two hours and twenty minutes. Like Kunz, Paolillo discussed B.W.N.'s history of sexual offenses and the manifestations of his psychopathic tendencies and noted that he did not take responsibility for his criminal history. Paolillo also placed B.W.N. among those with a high recidivism rate, based on his score of six on the Static-99R assessment and his score of 31.6 on a PCLR Hare psychopathy test, which exceeded the 30 point threshold for psychopathy. Paolillo diagnosed B.W.N. with Paraphilia and APD. Paolillo found that because B.W.N. never received sex offender-specific treatment, he had no insight on how to avoid reoffending. Therefore, like Kunz, Paolillo concluded that B.W.N. was highly likely to reoffend if not committed to STU. She discounted his incident-free incarceration, explaining that persons with antisocial tendencies follow orders and comply with authority while under a high level of supervision. If released, B.W.N. would not have this level of supervision.
Dr. Foley, testifying for B.W.N., considered the 1985 offenses as sexual in nature. Foley also diagnosed B.W.N. with APD and Polysubstance Dependence. He opined that the scores reflected on the Static-99R assessment and Hare test were not "robust indicators" of B.W.N.'s risk of sexually reoffending, because sex offender recidivism declines with age. Foley concluded that B.W.N. presented a less than highly likely risk of reoffending.
Judge James F. Mulvihill issued an oral opinion on August 26, 2013. The judge found the State's experts to be more credible than Foley and, consequently, determined that the State had proved by clear and convincing evidence each element required for commitment under the SVPA. Specifically, the judge found that B.W.N. was convicted of sexual violent offenses and that he suffered from a mental abnormality or personality disorder, specifically APD and paraphilia. The judge also found that B.W.N. had no significant treatment to mitigate the paraphilia. The judge concluded that B.W.N. remained "highly likely to engage in further acts of sexual violence if not confined to a secure facility[.]" This appeal followed.
We turn to B.W.N.'s initial argument, raised for the first time on appeal, that his commitment should be vacated because Dr. Kunz's examination was not conducted within five days of the hearing, and he was not shown to be a member of B.W.N.'s treatment team. We reject these claims.
The SVPA mandates that "[a] psychiatrist on the person's treatment team who has conducted a personal examination of the person as close to the court hearing date as possible, but in no event more than five calendar days prior to the court hearing," be present at the hearing to testify "to the clinical basis for the need for involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.30(b). The trial court may also permit testimony from other members of the person's treatment team. Ibid.
We note at the outset that this issue was not presented to the trial court. Therefore, we could reject the argument on this basis alone. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.), certif. denied, 188 N.J. 492 (2006) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). However, as in A.H.B., because of the personal liberty interest at stake, we elect to consider the allegation of error under the plain error standard of review, Rule 2:10-2, to determine whether it is clearly capable of producing an unjust result.
We fail to see how the time delay between Kunz's examination and the final hearing was clearly capable of producing an unjust result. The record reflects that Dr. Kunz conducted a two-hour and thirty-five minute interview with B.W.N. prior to the initial final hearing date in April 2013. While the record does not disclose why the hearing was rescheduled, the examination was held reasonably close to the hearing date and Kunz testified at the hearing. There is also no indication in the record that there was any change in B.W.N. during the ensuing months or that the delay raised a reasonable doubt as to whether it led the fact-finder to a result it would not otherwise have reached. In A.H.B., we concluded that the untimely examination by the State's psychiatrist could not have led to an unjust result when considered in conjunction with the entire record. A.H.B., supra, 386 N.J. Super. at 31. We reach the same conclusion here.
Next, we reject B.W.N.'s contention that the court should have disregarded Dr. Kunz's testimony, because he was not a part of B.W.N.'s treatment team. In A.H.B., we noted that the SVPA defines "[t]reatment team" as including "individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of sexually violent predators." Id. at 25 (quoting N.J.S.A. 30:4-27.26). Dr. Kunz, a psychiatrist under contract with the State, provides his services at the STU, "a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.26. Therefore, we consider him to be a member of B.W.N.'S treatment team, as broadly defined in the SVPA, even though the doctor himself may not have provided any treatment services to B.W.N. See N.J.S.A. 30:4-27.26.
We turn to B.W.N.'s contention that the court erred in finding that the State proved by clear and convincing evidence that he has a mental abnormality or personality disorder warranting his continued confinement. Our review of a trial court's commitment determination is extremely narrow. In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014). Judges who hear SVPA commitment cases are specialists and their expertise is entitled to special deference. Ibid. Thus, "[t]he 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." Ibid. (internal quotation marks omitted) (quoting In re D.C., 146 N.J. 31, 59 (1996)).
Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). Three requirements must be satisfied to classify a person as a sexually violent predator:
(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."
[R .F., supra, 217 N.J. at 173 (quoting W.Z., supra, 173 N.J. at 130); see N.J.S.A. 30:4-27.26]
The SVPA defines a "[m]ental abnormality" as a "condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26. Although the SVPA does not define "personality disorder," our Supreme Court has held it sufficient if the offender has a mental condition that adversely affects his "ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127; see also N.J.S.A. 30:4-27.26.
Governed by these standards, we discern no reason to disturb Judge Mulvihill's decision. Both of the State's experts diagnosed B.W.N. with APD. APD is a recognized personality disorder that can be sufficient proof under the SVPA when the symptoms manifest in a sexually violent manner and reduce the offender's ability to control his sexually violent conduct. W.Z., supra, 173 N.J. at 114; see e.g., In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 629 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Dr. Kunz and Dr. Paolillo each testified that APD, a risk factor for recidivism, reduced B.W.N.'s ability to control his sexually violent conduct. Furthermore, Dr. Paolillo diagnosed B.M.W. with paraphilia. Dr. Foley, B.W.N.'s expert, did not contradict these diagnoses, and also diagnosed him with APD.
Based on the doctors' thorough testimony and reports, the trial judge found the State's witnesses credible and importantly found Dr. Foley not credible in his assessment of B.W.N.'s risk to reoffend. The judge concluded that B.W.N did in fact suffer from personality disorders that make him likely to engage in acts of sexual violence. He also determined that B.W.N. was at risk to re-offend unless he was confined to an institution for treatment. Because this finding is amply supported by the record, the trial judge did not abuse his discretion in determining that B.W.N. is a sexually violent predator.
After carefully considering the record and the briefs, we conclude appellant's remaining argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Given the limited scope of review, we affirm the trial court's order of continued civil commitment. The trial court's conclusions were fully supported by the record and consistent with the applicable law.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION