NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0940-07T20940-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.Z.M. SVP-253-02

_________________________________

Argued February 25, 2008 - Decided

Before Judges Parrillo and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 253-02.

Peter Latimer, Assistant Deputy Public Advocate, argued the cause for appellant J.Z.M. (Ronald K. Chen, Public Advocate, attorney).

Lisa M. Albano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney).

PER CURIAM

J.Z.M. appeals from a September 13, 2007 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He was initially committed to the STU on a temporary order of commitment on June 20, 2002. At the initial hearing on September 18, 2002, the judge continued his commitment. We reversed that order on appeal, finding that the testimony of the State's single witness impermissibly relied on hearsay. We remanded for a new commitment hearing that took place on October 4, 2005, at which time J.Z.M.'s commitment was again continued. We affirmed that order on appeal. While the first appeal was pending, an annual review hearing was conducted on September 10, 2003, and the judge ordered the continued commitment of J.Z.M. He did not file an appeal from that judgment. His commitment was again reviewed and continued on August 2, 2006. The most recent hearing, and the subject of this appeal, was held on September 13, 2007. We affirm.

J.Z.M.'s predicate offense is a November 15, 1999 conviction for a December 12, 1997 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). On the day in question, thirty-nine-year-old J.Z.M., who was deaf and mute, met M.S., who also had language impairments. After smoking cocaine, the two went to his house where J.Z.M. choked her by applying his full weight on her neck with his forearms so that she could not breathe. He then sexually assaulted her. J.Z.M. was sentenced to a five-year term of imprisonment.

J.Z.M.'s sexual assault of M.S. was preceded by a September 22, 1993 conviction for an August 16, 1992 aggravated sexual assault on a woman whom he accosted at knife point on a street. J.Z.M. forced her to a nearby secluded area where he repeatedly vaginally penetrated her for more than three hours against her will. He was sentenced to a five-year prison term as a result of that August 16, 1992 attack.

In addition to his two sexual assault convictions, J.Z.M. was convicted of two other violent crimes. The first was an October 14, 1998 aggravated assault conviction for slashing a female, K.W., with a broken bottle. The second was an October 13, 1999 conviction for stalking and terroristic threats arising out of an incident where he entered a warehouse, grabbed a woman and threatened to kill her. The victim was K.W., the same woman who was the victim of the October 14, 1998 conviction. For these two crimes, he was sentenced to two concurrent five-year prison terms with a parole ineligibility period of eighteen months. When J.Z.M. was on the verge of maxing out on his sentence for the December 12, 1997 attack on M.S., the State petitioned for J.Z.M.'s involuntary civil commitment as a sexually violent predator.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b). "[T]he State must prove [a] threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

During the September 13, 2007 hearing that is the subject of this appeal, the State presented the testimony of Dr. Michael McAllister, a psychiatrist. McAllister diagnosed J.Z.M. as suffering from: (1) paraphilia, NOS; (2) a history of alcohol, cocaine and opiate abuse; (3) personality disorder, NOS; (4) bilateral hearing loss and mutism; and (5) borderline intellectual functioning.

McAllister also opined that the diagnosis of malingering should be added to J.Z.M.'s diagnoses. He explained that it was apparent J.Z.M.'s confusion was contrived because it was only when J.Z.M. was describing his sex offense issues that he became evasive and confused. As to the paraphilia, a disorder that is marked by sexual urges or behavior toward those who do not consent, McAllister observed that J.Z.M.'s history of two sexual assault convictions that involved "coercive sexual acts" justified that diagnosis. Next, McAllister explained that the diagnosis of personality disorder was justified by J.Z.M.'s lengthy history of criminal behavior, lack of respect for the rights of others, pleasure in exploiting and manipulating others, lack of concern for the perspective of others, lack of respect for the rule of law, impaired conscience development, impulsivity, and difficulty in establishing and maintaining long-term relationships.

When asked to describe J.Z.M.'s attitude toward, and participation in, treatment, McAllister responded that J.Z.M. "clearly demonstrates a resistance to treatment." He explained that J.Z.M. "has not demonstrated a consistent, active participation in treatment . . . nor a positive motivation to actively discuss his sexual offenses or his sexual deviancy."

McAllister also opined that J.Z.M.: (1) presently "suffers from a mental abnormality or personality disorder that affects him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence;" and (2) is at high risk of sexually reoffending in the foreseeable future unless confined to a secure facility. He based that conclusion on J.Z.M.'s sexual offense history, his active resistance to participation in treatment, and his substantial substance abuse.

On cross-examination, McAllister testified that in J.Z.M.'s five years at the STU he had never: been on restrictive or modified activities; acquired any type of pornography; acted in a sexually inappropriate way toward staff or officers; had any inappropriate physical outbursts toward staff or officers; or been absent from therapy sessions.

Dr. McAllister was the only witness to testify on behalf of the State. J.Z.M. stipulated to the admission in evidence of a report that was prepared by Dr. Doreen Stanzione, a psychologist, and he agreed to cross-examine Stanzione without the State presenting her direct testimony. Stanzione's report described the findings made by the Treatment Progress Review Committee (TPRC) at its six-month review of J.Z.M.'s progress in treatment.

First, the report observes that J.Z.M. had "taken the floor" to discuss his sexual offense cycle on only two occasions over the course of the preceding year. On one of those two occasions, Stanzione read aloud to the group portions of the police reports that were contained in the official investigation. She then asked J.Z.M. to comment on what had just been read. According to the TPRC, J.Z.M. "kept coming back to the fact that [M.S.] was high on crack cocaine and that he wanted her to 'calm down' and 'relax.'" The TPRC reported that J.Z.M. felt his "only option . . . to accomplish this was to vaginally rape her while chok[ing] her with his full weight on her neck with his forearms." Only after the group "challenged him heavily on this and got him to admit that it was his choice to rape her" did he "reluctantly agree" that he had no right to engage in such conduct. The TPRC opined that J.Z.M.'s failure to understand his own culpability prevents him from understanding his sexual offense cycle. The TPRC also concluded that J.Z.M. "does not demonstrate empathy for his victims."

The TPRC also found that J.Z.M. demonstrated an inadequate understanding about his "arousal to rape," noting that it was "difficult to discern whether he was speaking about arousal in the past or the present." The TPRC observed that J.Z.M. "saw himself as strong and . . . women [as] weak." On the positive side, however, the TPRC observed that J.Z.M. was motivated and "ready to do all the work involved in getting better."

The TPRC administered the Static-99 test, a well-validated actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males who have been convicted of at least one sexual offense. J.Z.M. received a score of 8, which placed him in the high-risk category. By a unanimous vote, the TPRC recommended that J.Z.M. remain at Phase-2 of treatment.

On cross-examination, Stanzione acknowledged that she had never observed or participated in any of J.Z.M.'s treatment groups, but had participated in a meeting of his treatment providers. She also stated that although J.Z.M. is capable of making "incremental progress," such progress "is likely to be very, very, very slow."

In a detailed oral opinion that covers thirteen transcript pages, Judge Perretti summarized in considerable detail Dr. McAllister's testimony and the observations of the TPRC. In addition, she focused on the many favorable comments made about J.Z.M. by members of his treatment team throughout the year preceding the hearing. The judge observed that J.Z.M. is described as interacting well with staff and peers, being respectful of staff and expressing support for other members of the therapy group. She nonetheless found that despite J.Z.M.'s cooperative attitude, he had failed to develop any insight into his pattern of deviant arousal and was unwilling to explore the reasons why he continually resorted to violence. The judge found that when challenged by the group "he became very defensive . . . and refused to elaborate further . . . ." She observed that when questioned, J.Z.M. becomes "vague, evasive, avoidant and inconsistent," which she found is "indicative of [J.Z.M.'s] antisocial tendencies and continued criminal mindset." The judge described J.Z.M.:

[His] actions are characterized by a longstanding difficulty in maintaining relationships. He has had multiple arrests. He has demonstrated a lack of respect for the rights of others and a willingness to prey on others. He has taken no responsibility for the effects of his acts. He has demonstrated impulsivity and a general lack of conscience development.

Judge Perretti agreed with McAllister's and the TPRC's assessment of J.Z.M. as at "high risk" to commit sexually violent acts. After reviewing the evidence, Judge Perretti concluded that the State had met its burden of proof:

The Court is clearly convinced that this Respondent continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorder that influence his volitional, cognitive and emotional capacities so as to predispose him to commit sexually violent acts.

He has difficult[ies] controlling his sexually violent behavior as he has demonstrated from his repetitive sex offending in the past. And he is highly likely to commit additional sexually violent acts in the foreseeable future if not continued in a confined facility for further care.

The Court is clearly convinced that this Respondent has deliberately resisted sex offense treatment and is clearly convinced that this Respondent is capable of benefiting therefrom.

On appeal, J.Z.M. argues that the trial judge erred when she accepted Dr. McAllister's diagnosis of malingering because Dr. Stanzione, who J.Z.M. claims is better qualified, did not reach a diagnosis of malingering. A judge is free to accept or reject expert testimony. We will not substitute our view of the facts for the findings made by the trial judge where, as here, the judge's findings are supported by substantial credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

Measured by this standard, the September 13, 2007 order must been affirmed. Our review of Judge Perretti's findings and conclusions demonstrate that she properly evaluated both the actuarial and clinical evidence before her. The record amply supports her conclusion that: J.Z.M.'s diagnoses are unchallenged; his insight into his deviant arousal and history of sexual violence is non-existent; and his progress has been insubstantial. We conclude that the record fully supports Judge Perretti's findings and satisfies the State's heavy burden of proof that J.Z.M. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.

Affirmed.

J.Z.M.'s IQ was scored as between 71 and 84 on the Weschler Scale.

McAllister and other members of the treatment staff communicated with J.Z.M. by using two interpreters. The first interpreter interprets J.Z.M's slang version of sign language and conveys it to the second interpreter by using standard American Sign Language (ASL). The second interpreter translates the ASL into spoken language. That system was also used during the September 13, 2007 hearing.

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A-0940-07T2

RECORD IMPOUNDED

March 6, 2008