Opinion
DOCKET NO. A-5299-08T2
02-26-2013
IN THE MATTER OF THE CIVIL COMMITMENT OF C.S.P. SVP-525-09.
Joseph E. Krakora, Public Defender, attorney for appellant C.S.P. (Nancy C. Ferro, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-525-09.
Joseph E. Krakora, Public Defender, attorney for appellant C.S.P. (Nancy C. Ferro, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief). PER CURIAM
C.S.P. appeals his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment was entered on May 19, 2009. Although it provides for a review hearing on May 7, 2010, none has been conducted.
The brief on behalf of C.S.P. was filed on December 8, 2010, and the State's brief was filed on August 20, 2012. On the court's inquiry, the attorneys have explained that the delay in briefing is a consequence of staffing and caseload levels. With respect to the delay in the annual review hearings required by N.J.S.A. 30:4-27.35, the attorneys have advised that C.S.P. waived the first hearing and that as a matter of "general practice" review hearings are "carried" while an appeal is pending. Neither party has raised any issue concerning these delays on appeal.
The SVPA provides for civil commitment of a "sexually violent predator" — a person "convicted . . . of a sexually violent offense" who "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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid. The essential elements — qualifying conviction, mental abnormality or personality disorder and the resulting danger to others — must be established by clear and convincing evidence. N.J.S.A. 30:4-27.32; In re Commitment of W.Z., 173 N.J. 109, 125-26, 133-34 (2002).
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979); In re W.Z., supra, 173 N.J. at 125. This interference with liberty requires proof of a mental abnormality or personality disorder that renders the person sufficiently likely to commit sexually violent acts dangerous to others to warrant exercise of a state's authority to "protect the community at large, and . . . provide care to its citizens who are unable to care for themselves because of their emotional disorders." In re W.Z., supra, 173 N.J. at 125, 132.
As interpreted by our Supreme Court to conform with the requirements of substantive due process, commitment pursuant to the SVPA is permissible only when the State establishes that a person who has committed a sexually violent offense has a mental abnormality or personality disorder that is presently causing the person "serious difficulty" in controlling, or a "substantial inability" to control, sexually violent behavior and that the person's commission of a sexually violent offense in "the reasonably foreseeable future" is "highly likely" unless the person is confined "in a secure facility for control, care and treatment." Id. at 120, 126, 131-33; see Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002).
Acknowledging that he has a qualifying conviction, C.S.P. contends that the State did not present sufficient evidence to establish that he presently has serious difficulty controlling his sexually violent conduct such that he is highly likely to commit a sexually violent offense in the reasonably foreseeable future if not confined in the STU. In determining that the State met that burden, the trial court heavily relied on the only expert opinion admitted into evidence.
As with review of any civil commitment, this court must "canvass . . . the record and determine whether the" trial court's findings and conclusions "were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996); see also State v. Fields, 77 N.J. 282, 311 (1978). A commitment based on search, analysis and evaluation of the record and "anchored in the evidence" is affirmed. In re D.C., supra, 146 N.J. at 61. Intervention is permissible only to address a "clear mistake." Id. at 58.
The record demonstrates that unproven allegations of sexual assaults and the expert's mistaken understanding of C.S.P.'s criminal history served as "significant building block[s]" for the expert's opinion on C.S.P.'s present condition and present propensity to commit acts of sexual violence if not committed to the STU. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 489-90 (App. Div.), certif. denied, 185 N.J. 393 (2005). Accordingly, we remand for a new hearing.
I
A
The SVPA authorizes the Attorney General to initiate proceedings to involuntarily commit inmates who are "sexually violent predators" and are scheduled to be released from prison at the expiration of their sentence. N.J.S.A. 30:4-27.28. When the Attorney General commenced this commitment in April 2009, C.S.P. was serving concurrent sentences with an aggregate term of four years that were imposed in February 2007 on convictions for failure to register as a sex offender, N.J.S.A. 2C:7-2, and resisting arrest, N.J.S.A. 2C:29-2. Nevertheless, because he had a prior conviction for a sexually violent offense, he was eligible for SVPA commitment. In re Commitment of P.Z.H., 377 N.J. Super. 458, 465 (App. Div. 2005).
The sentence for resisting arrest was imposed upon revocation of a probationary sentence for resisting imposed in June 2006.
Pursuant to the SVPA, the State must present the testimony of 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." N.J.S.A. 30:4-27.30(b); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). A psychiatrist working for the Division of Mental Health Services in the Department of Human Services at the STU need not have provided treatment to qualify as a member of the treatment team. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 25-26 (App. Div.), certif. denied, 188 N.J. 492 (2006).
In this case, a forensic psychiatrist employed by the Division of Mental Health at the STU, Dr. Dean M. De Crisce, was the only witness at the commitment hearing. The parties stipulated to his qualifications.
Five days before the hearing, De Crisce attempted to evaluate C.S.P. De Crisce informed C.S.P. that his participation was "voluntary," that a report would be prepared for the court whether or not C.S.P. participated and it would not be confidential. C.S.P. told De Crisce that he did not wish to speak to him at that time. Consequently, De Crisce was unable to form any opinion based on his evaluation of C.S.P. other than that he was "alert and linear" and that C.S.P. "understood" what De Crisce was "explaining to him" and had no abnormalities discernible during their encounter.
De Crisce's opinion that C.S.P. qualified for commitment under the SVPA was based solely on his review of the records and prior evaluations that are listed in his report, including police and presentence investigation reports, court records, criminal history reports and psychological evaluations. There was a psychological evaluation done in 1988 prior to C.S.P.'s sentencing for sexual and aggravated sexual assault for the purpose of a recommendation as to whether he should be sentenced as a sex offender to the Adult Diagnostic and Treatment Center, N.J.S.A. 2C:47-1 to -3. The more recent evaluations were: one in April 2007 for a parole hearing; an evaluation and risk assessment completed in January 2009; and two psychiatric evaluations which were completed in April 2009 for the purpose of preparing the clinical certificates required for this commitment to proceed, N.J.S.A. 30:4-27.28(a).
When asked if he was able to render an opinion to a reasonable degree of psychiatric certainty without interviewing C.S.P., De Crisce said, "I do believe that I was. I think that an interview with him would clarify some of the issues that I have, but to the ultimate opinion, I believe that I was able to come — to come to that conclusion." C.S.P. does not contend that De Crisce's testimony, which was not based on a recent examination, was in violation of N.J.S.A. 30:4-27.30(b).
B
C.S.P., born in 1957, will be fifty-six years old in March. When he was seventeen years old he pled guilty to conduct that would amount to lewdness if he were an adult and was adjudicated delinquent. He was placed on probation and discharged without improvement in 1976. Acknowledging that the details of that offense were not available to him, De Crisce relied on information from a 2009 report of a psychological evaluation done by Christie L. Kokonos and a clinical certificate prepared by Dr. Anasuya Salem. They both indicated that the lewdness charge had been downgraded from charges that C.S.P. sodomized two boys, a seven and a ten year old. C.S.P. told Kokonos that he paid one twelve-year-old boy and one sixteen-year-old boy for anal sex.
In 1977, C.S.P. was found not guilty of rape and rape while armed. C.S.P. told Kokonos that the allegation was made by an angry girlfriend who was trying to get him to claim he was the father of her child.
In 1988, C.S.P. pled guilty to committing sexual and aggravated sexual assaults, both of those crimes fall within the SVPA's definition of a "sexually violent offense," N.J.S.A. 30:4-27.26. The judgments of conviction were entered on the same day in 1988, but the sexual and aggravated sexual assault were committed on different occasions and against different victims. The victim of the aggravated sexual assault was B.M., a girlfriend of C.S.P.'s nephew. C.S.P. raped her at gunpoint in December 1986, after she refused to have intercourse with him. According to C.S.P., they had been drinking, and possibly doing drugs, prior to the assault. C.S.P.'s admission to that conduct is included in the presentence report.
C.B., a cousin of C.S.P.'s girlfriend, was the victim of the sexual assault that C.S.P. committed in May 1987. As C.S.P. explained in a statement summarized in the presentence report, he saw C.B. walking and asked her if she wanted a ride. They both had been drinking and he told her he "wanted to make love to her." When she refused, he "smacked her" and drove her to a vacant lot where he forcibly had intercourse with her. When C.B. spoke to the police she had a torn dress, bruised face and scratches on her neck and upper chest; she told them that C.S.P. punched her, forced her into the back of the car and raped her.
Prior to his sentencing for those sexually violent offenses, C.S.P. was evaluated to determine whether he was a repetitive and compulsive sex offender eligible for sentencing pursuant to N.J.S.A. 2C:47-1 to -3. The clinical psychologist was unable to assess his condition because C.S.P. refused to say anything about the crimes other than that he would not have done those things if he did not have a drug problem and had not been drinking. Because there was no other clinical evidence to support a determination, the psychologist recommended against sex offender sentencing. The judge imposed an ordinary sentence — concurrent terms of imprisonment for an aggregate term of twelve years and a four-year period of parole ineligibility. The judgment of conviction, however, includes a recommendation for drug and alcohol rehabilitation, psychiatric therapy, vocational training, and academic and group counseling programs.
C.S.P.'s "court history," set forth in a subsequent presentence report, indicates that he was released on parole from his 1988 convictions for sexual and aggravated sexual assault in January 1993. Eight months later, C.S.P. had vaginal and anal intercourse with a twelve-year-old girl on numerous occasions — the first being in October 2003 in Ohio and the last being in January 1994 in New Jersey. The statement the victim gave to the police is quite clear about the dates of the abuse.
In January 1994, C.S.P. violated his New Jersey parole, which resulted in revocation of that parole and his return to prison. He remained in prison in New Jersey until July 1994 when he was due for release on service of his full sentence.
There was, however, a warrant for his arrest in Ohio concerning his abuse of the twelve year old. C.S.P. waived an extradition hearing, and the Dayton police arrested him from the Camden County Jail on August 11, 1994. C.S.P. was subsequently charged with seven counts of rape in Ohio, but in April 1995, he pled guilty to a lesser offense, gross sexual imposition, and received two consecutive sentences of three-to-five years.
The sentence C.S.P. received on the gross sexual imposition convictions is reported inconsistently in the record. In addition to it being reported as two consecutive sentences of three-to-five years, there is a 2006 New Jersey presentence report indicating only one sentence of three-to-five years, and a record from the Identification Section, Department of Police, Dayton Ohio indicating consecutive sentences of three-to-fifteen years.
In his report and during his testimony, De Crisce confused the date of C.S.P.'s arrest for these Ohio crimes with the date C.S.P. commenced abusing the child. De Crisce was asked if there was "any relevance . . . that [C.S.P.] would begin committing this crime within weeks from being released from [a sentence for] prior sex offenses?" He responded:
It is of great significance. Because it shows quite a bit of impulsivity, inability to refrain, even in the face of prior significant legal involvement and trouble to risk doing that. And spending many years of life in prison when you just did time in prison shows a, kind of, inability to volitionally refrain from behaviors like that.
De Crisce knew that prior evaluations reflected some confusion about whether C.S.P. was the child's father, and De Crisce placed importance on the fact that C.S.P. later denied the abuse despite having pled guilty. He did not know that C.S.P. had told a psychologist, Kokonos, that he had abused the child as a "way to get back" against the child's mother. According to Kokonos, C.S.P. had said, "I felt like her mother betrayed me. So I figured let me have sex with [the child] and make her mother hate me like I hated her." After this admission was pointed out to De Crisce, he testified that this inconsistency, which he had failed to note in reviewing the records, called the credibility of C.S.P.'s accounts into question.
C.S.P. has not been convicted of any sexual offense since his 1994 conviction in Ohio for conduct between October 1993 and January 1994, when he was thirty-seven. In July 2005, C.S.P. was charged with sexual and aggravated sexual assault in New Jersey, but he was not indicted on either charge. The alleged sexual assaults were "no billed." No evidence providing information about this charge or the victim was introduced at trial; for reasons that are unclear on this record, De Crisce attributed the allegation to a woman who supposedly obtained a restraining order against him and again alleged that C.S.P. raped her in September 2005.
The September 2005 allegation of rape was made by C.S.P.'s girlfriend, but C.S.P. was never charged with sexual assault. Instead, he was charged with aggravated assault, unlawful possession of a weapon and resisting arrest. He pled guilty to resisting arrest, and in June 2006 he was sentenced to probation for three years. The presentence report includes information found in a police report, which indicates that the woman refused medical treatment and a restraining order. C.S.P. gave a statement acknowledging that he resisted arrest, but he said nothing about the woman's allegations.
De Crisce was aware that C.S.P. was not charged with or convicted of any sexual offenses in the September 2005 incident and that he consistently denied them. Nevertheless, De Crisce gave great weight to the victim's allegations as reported in the presentence report, despite the fact that they were not admitted by C.S.P. or charged by the authorities. He testified, "I do not understand why a sexual charge was not one of the original charges, as there is clearly no doubt in my mind that this is a sexually motivated charge, and that the primary charge was not resisting arrest." Moreover, because De Crisce relied on this uncharged conduct, he erroneously concluded that C.S.P. committed his most recent sexual offense at age forty-eight. This erroneous conclusion led De Crisce to discount the importance of C.S.P.'s advanced age when assessing C.S.P.'s level of risk.
In January 2007, C.S.P. was arrested for and pled guilty to failure to register as a sex offender as required by N.J.S.A. 2C:7-2. Consequently, his probation was revoked and he was sentenced to the aggregate four-year term that was about to expire when the Attorney General commenced this litigation.
C.S.P.'s criminal history does not include any additional allegations of sex offenses after September 2005. In total, there were three occasions on which allegations of sexual offenses that did not result in convictions were made — one in 1977 and two in July 1995. De Crisce explained his reliance on these unproven allegations as follows: "I do not understand how someone can have so many charges and have them all dismissed or not guilty. But I do know that, actuarially, the chances of having that many false accusations is extremely unlikely."
In making this statement, De Crisce was also referring to the many non-sexual charges in C.S.P.'s criminal history which were never substantiated, but upon which De Crisce relied in making his diagnosis.
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De Crisce's report indicates that C.S.P. has "at least nine sexually related arrests." He included the 1977 and the July and September 2005 allegations that either resulted in acquittal or were never prosecuted and he apparently included instances in which C.S.P. was charged with failure to register as a sex offender. Indeed, De Crisce testified that his diagnosis of C.S.P. was based partially "[o]n the accusations, even alone, even the ones that are not convicted."
De Crisce was unable to conclude that C.S.P. suffered from pedophilia or paraphilia, but he determined that he "suffere[d] from antisocial personality disorder" based on his "extensive criminal history, disregard for the safety of others, failure to sustain consistent work behavior, lack of remorse and extensive use of aliases." Three aliases C.S.P. used are listed in De Crisce's report.
In De Crisce's opinion, that disorder, "in the context of multiple sexual offenses, even in the absence of an actual paraphilia, still represent a very high likelihood of sexual re-offense. Antisocial personality disorder provides for the meeting of one's sexual needs at the disregard for the welfare of others."
De Crisce was also of the opinion that C.S.P. suffered from "polysubstance dependence." That opinion was based on C.S.P.'s acknowledgement that alcohol and drugs had a role in his sexual offenses. In concluding that substance dependence was relevant to a present risk of sexual violence De Crisce reasoned, "Substance abuse is a known contributor to sexual reoffense because of the disinhibition provided . . . by intoxication."
In finding present substance dependence, De Crisce reported conflicting information about C.S.P.'s treatment for substance abuse. De Crisce indicated that C.S.P. said he participated in a six-month drug program while incarcerated in Ohio, but De Crisce indicated that it was a twelve-week program. He opined that C.S.P.'s "brief (12 weeks) treatment [was] inadequate to prevent community return to substance abuse." There is no indication that De Crisce had any information about programs in which C.S.P. participated while incarcerated in New Jersey.
In addressing the risk of recidivism, De Crisce also considered the fact that C.S.P. did not have sex offender treatment relevant to his present risk. Although De Crisce acknowledged that C.S.P. claimed to have completed sex offender treatment in Ohio, he dismissed the claim because the treatment records of the Ohio Department of Rehabilitation and Correction that he reviewed, which were not admitted into evidence at trial, showed completion "of a few programs of rehabilitation type" but "no sex offender treatment which is documented." According to De Crisce, the programs were educational and related to employability skills and substance abuse. Because the Ohio records De Crisce reviewed were not presented at trial, there was no basis for the trial court and there is now no basis for this court to assess De Crisce's interpretation of the Ohio treatment records.
C.S.P. made several statements during the recent evaluations about his view of his prior sexually violent conduct that De Crisce did not address at all in concluding that he presently posed a high risk of engaging in sexual violence in the reasonably foreseeable future. In 2007, discussing the conduct that led to his Ohio convictions for gross imposition, C.S.P. said, "I was being a fool. Drug problems. Pretty much thinking I could do whatever I wanted to do."
In 2009, he told Dr. Salem that he felt bad about his sex crimes now and would not do the same thing again "because it is not me. My feelings have changed about life." Also in 2009, C.S.P. told Dr. Moshkovich that he committed sex offenses in the past because "he did not care, but now he is a different person." In speaking with Kokonos in January 2009, C.S.P. said that he knew forcing himself on women and having sexual contact with children was "not right" but that he had "let [his] mind take over." On further questioning he explained, "I am tired of hurting people and feel I can control it now. I know I can't just do whatever I want just because I want to."
C
Our courts have stressed that findings leading to civil commitment pursuant to the SVPA must be based on adequate reliable evidence that can be tested through cross-examination. In formulating an opinion, a testifying expert may rely upon inadmissible evidence if it is of the sort "reasonably relied upon by experts in the particular field." N.J.R.E. 703. The types of evidence an expert may consider in this context include police reports, presentence reports and prior psychiatric evaluations. See In re Commitment of J.M.B., 197 N.J. 563, 597 n.9, cert. denied, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re J.H.M., supra, 367 N.J. Super. at 611-14.
The evidence upon which a testifying expert relies, including otherwise inadmissible evidence, is admitted into evidence for a limited purpose — so that it may be considered in evaluating the worth of the testifying expert's opinion. Thus, otherwise inadmissible evidence, such as statements made by victims that are repeated or summarized in police and presentence reports, may be considered by the trial court for the purpose of evaluating the opinion of a testifying expert. In re J.M.B., supra, 197 N.J. at 597 n.9. In contrast, admissions and adoptive admissions of the person being considered for commitment that are admissible pursuant to N.J.R.E. 803 may be considered for an additional purpose — as proof of the facts admitted. Ibid.
On that reasoning, this court has indicated that otherwise inadmissible, unproven and disputed allegations about the committee's conduct could not be accepted as proof of the facts alleged. See In re A.E.F., supra, 377 N.J. Super. at 490-91; see also In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 572-73 (App. Div. 2004) (noting that an expert may not simply recite the opinion of a non-testifying expert or relate it for the purpose of bolstering his own opinion); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004) (same).
Moreover, this court has noted that to the extent an expert's opinion rests on inaccurate facts or a baseless resolution of disputed fact, the expert's reliance is unreasonable. In re A.E.F., supra, 377 N.J. Super. at 489-91. When an expert relies on such information, the expert has undermined the foundation for and, therefore, the evidential worth of his or her opinion. Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8-9 (App. Div.), certif. denied, 165 N.J. 523 (2000). For that reason, in In re A.E.F. this court noted that serious questions would be raised if the expert opinions that supported the commitment had depended upon unproven allegations of sexual offenses. 377 N.J. Super. at 490.
As our discussion of the record in section B demonstrates, De Crisce's opinion rests heavily on unproven allegations, which he assumed were true, and on De Crisce's mistaken understanding of the temporal proximity between C.S.P.'s release from prison in 1993 and his commencement of sexual abuse of the twelve-year-old girl in Ohio. These assumptions and this mistaken understanding served as the building blocks for his opinion on C.S.P.'s present risk of recidivism and inability to control sexually violent behavior, including his discounting of the significance of C.S.P.'s age. We further note that while De Crisce relied on C.S.P.'s admissions against interest included in evaluations, he did not consider C.S.P.'s statements about his present attitude toward his victims and assertions about his present ability to avoid repetition.
We recognize, and do not minimize, the seriousness of C.S.P.'s criminal record. Nevertheless, the importance of the mistaken and unsupported information to the expert's diagnosis of antisocial personality disorder and to his opinion on the likelihood of recidivism cannot be overstated. Moreover, we cannot overlook the expert's total disregard of C.S.P.'s recent statements about his own condition included in the evaluations upon which De Crisce relied. For the foregoing reasons, we conclude that the interests of justice require a new trial to address the clear mistakes that undermine the weight that can be reasonably assigned to this critical expert opinion.
There is another reason for our conclusion that a new trial is required. Even where there is reliable and competent evidence of prior convictions for, as opposed to allegations of, sexually violent acts, a SVPA commitment cannot be based on the person's convictions alone. In re E.S.T., supra, 371 N.J. Super. at 577. After all, due process requires that SVPA commitment rest upon a "psychiatric diagnosis" of a "mental abnormality" sufficiently severe "to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Crane, supra, 534 U.S. at 409, 122 S. Ct. at 870, 151 L. Ed. 2d at 862; In re W.Z., supra, 173 N.J. at 124-25. Similarly, this court has stressed that proof of sexual violence in the past is not, in itself, proof of "present mental abnormality of personality disorder" and that prior conduct cannot be given "excessive weight . . . in finding present day likelihood to engage in acts of sexual violence." In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004).
De Crisce's diagnosis of "antisocial personality disorder" and his assessment of the likely risk of additional sexual violence appears to be based on little, if anything, other than C.S.P.'s criminal record. The basis for this critical diagnosis as stated by De Crisce was C.S.P.'s "extensive criminal history, disregard for the safety of others, failure to sustain consistent work behavior, lack of remorse and extensive use of aliases." These are characteristics shared by many sentenced to prison for committing crimes and released prior to or at expiration of their respective sentences.
Moreover, De Crisce's explanation of the impact of this diagnosis — that "[a]ntisocial personality disorder provides for the meeting of one's sexual needs at the disregard for the welfare of others" — does little to distinguish C.S.P. from the typical recidivist. Cf. In re W.Z., supra, 173 N.J. at 115 (noting that the psychiatrist diagnosing antisocial personality disorder "explained that antisocial personality disorder is 'characterized by inability to behave to control one's behavior' and that 'if that includes sexual acting out, that will include sexual acting out'").
In short, the expert opinion, on which this commitment rests, raises significant questions about C.S.P.'s diagnosis and its relationship to the likelihood of his commission of an act of sexual violence in the reasonably foreseeable future. That deficiency also warrants a remand.
II
C.S.P. also argues that the trial court erred by not considering conditional release in lieu of commitment. C.S.P. relies on In the Matter of the Commitment of J.J.F., 365 N.J. Super. 486 (App. Div.), certif. denied, 179 N.J. 373 (2004), and In the Matter of the Civil Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002). Those decisions do not support his position. Conditional release is appropriate only if the trial court finds that the person does not qualify for SVPA commitment. In re J.J.F., supra, 365 N.J. Super. at 498; see also In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007).
Reversed and remanded for a new trial to assess C.S.P.'s current condition and risk of sexual violence.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION