Opinion
DOCKET NO. A-0920-13T2
02-04-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF E.F., SVP-673-13.
Joseph E. Krakora, Public Defender, attorney for appellant E.F. (Vincent J. Bochis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-673-13. Joseph E. Krakora, Public Defender, attorney for appellant E.F. (Vincent J. Bochis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
E.F. appeals from the Law Division's September 23, 2013 judgment, requiring his involuntary civil commitment to the Special Treatment Unit as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. E.F., age fifty, was incarcerated for approximately ten years for his sexual assault of three young boys. After his release, he was charged with violating the terms of his community supervision for life (CSL), imposed pursuant to N.J.S.A. 2C:43-6.4, by being alone in the company of a young boy and possessing alcohol. In exchange for the State dismissing the violation for being in the company of a minor, defendant pled guilty to the alcohol-related violation and was sentenced to a twelve-month term of imprisonment.
As the Supreme Court has explained:
While N.J.S.A. 2C:43-6.4(a) provides for community supervision for life, it does not delineate its scope. The main features of the supervision are found in the accompanying regulations, in particular N.J.A.C. 10A:71-6.11, which sets forth the general conditions that attach to a person under community supervision for life. An individual who is subject to community supervision for life, for example, cannot freely choose where to reside; he must obtain the permission of his supervising parole officer. N.J.A.C. 10A:71-6.11(b)(5)-(6). Similarly, he must obtain the permission of his parole officer before commencing employment and must notify his parole officer if he loses his employment. N.J.A.C. 10A:71-6.11(b)(14)-(15). He is subject to random drug and alcohol testing, N.J.A.C. 10A:71-6.11(b)(13), as well as a yearly polygraph examination, N.J.A.C. 10A:7-6.11(b)(21). Further, his parole officer may impose a curfew, N.J.A.C. 10A:71-6.11(b)(17), and he is restricted in terms of the use of a computer and the Internet, N.J.A.C. 10A:71-6.11(b)(22). In addition to those general conditions, special conditions may be imposed to meet the individual's particular situation. N.J.A.C. 10A:71-6.11(k). The imposition of those types of conditions significantly restricts the manner in which an individual may pursue his daily life.
[State v. Schubert, 212 N.J. 295, 306 (2012).]
Shortly before E.F.'s scheduled release from prison, the State petitioned for his involuntary civil commitment under the SVPA. Following an evidentiary hearing, the court concluded the State had proven by clear and convincing evidence that E.F. was diagnosed with pedophilia and antisocial personality disorders, and that his uncontrolled sexually violent behavior made it highly likely he would reoffend if released, and, therefore, that his involuntary civil commitment for treatment as a sexually violent predator was necessary.
On appeal, E.F. argues the State's petition for his commitment "failed to state a cause of action" because the supporting clinical certificates were defective, as they were the result of evaluations that were "improperly conducted at the same time and place." He also contends that the judgment should be reversed because the court prematurely entered an order of temporary commitment, and that the State failed to meet its burden of proof.
After due consideration of the record and applicable legal standards, we affirm, substantially for the reasons expressed by Judge John H. Pursel in his September 13, 2013 oral decision.
E.F.'s original incarceration was the result of his April 26, 2001 guilty plea to two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second degree sexual assault, N.J.S.A. 2C:14-2(b). The charges arose from E.F.'s sexual assault of three boys — ages nine, ten, and twelve — over a two-year period. In each instance, his victim was a friend's child and, in two of the cases, E.F. was living with the child's family. Prior to his arrest, E.F. was interviewed by police and told them he was intoxicated during the assaults and did not remember them.
On June 11, 2001, prior to sentencing, psychologist Jeffrey B. Allen, Ph.D., evaluated E.F. Though Allen could not "discern sexual compulsivity," he concluded, based on "the victims' accounts, [that E.F.] clearly exhibited repetitive deviant sexual behaviors." Accordingly, Allen determined E.F. was not eligible for sentencing under the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, which may have allowed him to serve his sentence at the Adult Diagnostic and Treatment Center (ADTC).
As we have explained:
The program created by the legislature permits the confinement of an offender at the ADTC only if specific criteria are met: (1) the offender must be convicted of one of the SOA's enumerated offenses; (2) there must be a finding, following a psychological examination, that "the offender's conduct was characterized by a pattern of repetitive, compulsive behavior"; (3) the offender must be both amendable to sex offender treatment and willing to participate in such treatment; and (4) following review, a judge must confirm the requisite findings. N.J.S.A. 2C:47-1; N.J.S.A. 2C:47-3(a).
[W.B. v. N.J. Dep't of Corr., 434 N.J. Super. 340, 347-48 (App. Div. 2014).]
Based upon E.F's plea and Allen's report, the court sentenced E.F. to an aggregate term of fifteen years in prison and CSL upon release, and required him to comply with the registration and notification provisions of Megan's Law, N.J.S.A. 2C:7-1 to -11. As a special condition of his CSL, E.F. was required to refrain from contact with minors and from alcohol use.
While in prison, E.F. was evaluated by mental health professionals on four occasions to determine whether he should be civilly committed upon completing his prison term. In August 2006, psychologist Gregg Gambone, Ph.D, evaluated E.F. and determined, based upon his evaluation and the results of two "sex offender risk assessment instruments," including a score of five on the Static-99 assessment, that E.F. posed a "moderate to high risk of sexual recidivism within the next ten years." He concluded that E.F. should not be released on parole, suffered from antisocial personality disorder, and should be referred for review for commitment as a sexually violent predator (SVP).
In November 2009, psychologist Troy Heckert, Ph.D., evaluated E.F. He too concluded that E.F. should be considered for civil commitment as an SVP. Heckert determined that E.F. posed a "high risk for committing future sexual offenses" despite giving him a score of three on the Static-99, which Heckert found did "not appear to accurately capture [E.F.'s] risk for sexual reoffending." Heckert's diagnostic impressions included "Rule out pedophilia, History of Alcohol Dependence and History of Cocaine dependence," as well as "Personality Disorder [not otherwise specified (NOS)] with Narcissistic and Antisocial Features."
The last two evaluations occurred in the weeks leading up to E.F.'s release from prison. Evidently, the two evaluating physicians did not recommend E.F. be committed as an SVP, though both diagnosed him with pedophilia.
The doctors who performed these evaluations did not testify and their reports were not admitted into evidence. We glean their conclusions and recommendations from the report and commitment hearing testimony of E.F.'s expert, psychologist Christopher Lorah, Ph.D.
E.F. was released from prison on March 25, 2010. Following his release, he lived and worked at a motel, where he provided security and maintenance services. E.F. also voluntarily enrolled in and attended individual and group therapy for sex offenders.
On July 6, 2012, E.F.'s parole officer conducted a home visit after receiving a tip that E.F. was alone in his motel room with a young boy. The officer found E.F. at the motel with a ten-year-old boy and in possession of alcohol, for which E.F. tested positive. E.F. admitted to watching the boy as a favor for the child's mother, who also worked at the motel, and recalled supervising the child while the boy was in the swimming pool, but did not recall being alone in his room with the child. The officer obtained a videotape from the motel supervisor that showed E.F. taking the child into his room for approximately six minutes, and arrested E.F. for violating the special conditions of his CSL.
In the ensuing investigation, the police determined E.F. was alone in the motel room with the child but did not sexually assault him. The Division of Child Protection and Permanency also investigated the potential sexual abuse and found the allegation to be unfounded.
E.F. was charged with two counts of violating the special conditions of his CSL, N.J.S.A. 2C:43-6.4(d), for his contact with a minor and his possession of alcohol. E.F. pled guilty to the alcohol-related count and, in January 2013, was sentenced to one year prison term, after which his previously-imposed CSL would continue. He was also required "to undergo a psychological evaluation and comply with any recommendations thereof."
On February 20, 2013, in connection with his processing at state prison, E.F. underwent a psychological evaluation and SVP risk assessment by psychologist Virginia Attanasio, Ph.D. In her ensuing report, Attanasio diagnosed E.F. with pedophilia, alcohol dependence, and a personality disorder (NOS) with antisocial and narcissistic features, and recommended E.F. be referred to the Attorney General for civil commitment under the SVPA.
On May 20, 2013, the State filed a petition seeking E.F.'s civil commitment under the SVPA. In an accompanying cover letter, the State requested the court "reserve decision for seven (7) days in order to provide the Public Defender an opportunity to contest whether the State has established probable cause."
The petition was supported by clinical certificates from psychiatrists Joanna Bajgier, D.O., and Alexander Kushnier, M.D. Both doctors stated in their certifications that they examined E.F. on May 20, 2013, from 10:30 to 11:10 a.m. Bajgier observed that E.F. exhibited "no insight into the reasons for his offending nor the risk of re-offense due to his drinking." Kushnier described E.F. similarly, concluding he "has no insight into either his [pedophilia or alcohol dependence] and has exhibited poor judgment. He has shown no ability to refrain from alcohol use, which is a major risk factor for his reoffense [sic]." Both Bajgier and Kushnier diagnosed E.F. with pedophilia, alcohol dependence, and a personality disorder (NOS) with antisocial and narcissistic features, gave him a score of five on the Static-99, and concluded that he presented a moderate to high risk of reoffending.
Following a review of the State's petition for civil commitment, the trial court found "probable cause to believe that [E.F.] suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment, and good cause having been shown." On May 24, 2013, the court issued a temporary civil commitment order, committing E.F. to the State of New Jersey Special Treatment Unit pending a final hearing. However, it did so within the seven-day period during which the State requsted the court reserve decision to allow the Public Defender to respond.
On September 12, 2013, the trial court held a hearing to consider E.F.'s civil commitment. At the hearing, the State presented expert testimony from Roger Harris, M.D., a psychiatrist, and Paul Dudek, Ph.D., a psychologist. E.F. presented the expert testimony of psychologist Christopher Lorah, Ph.D.
Harris interviewed E.F. on June 11 and August 30, 2013. He testified that E.F. denied having any feelings of arousal toward children and attributed "the majority of the responsibility, if not all the responsibility for these offenses, to the fact that he was basically intoxicated, and that he was not acting . . . as an individual that was conscious or aware of his acts." However, based on the period of time over which the assaults took place, Harris believed E.F. was "looking for opportunities to sexually gratify himself," and enabled his sexual offenses by befriending parents of young boys and being invited into their homes. Harris testified E.F. exhibited "clearly poor judgment" by his possession and consumption of alcohol at the motel on July 6, 2012. He found it "alarming" that E.F. agreed to supervise the boy without telling the mother of his history of sexual assaults or of "the danger . . . posed to both the child and . . . him[self] by supervising the child," and "bewildering" that E.F. would allow himself to be alone with the child while drinking.
Harris stated:
I think the . . . violation should be looked at similarly to the other offenses, that [E.F.] is not this victim to his own alcohol intake, as he insists throughout these offenses, but [E.F.] finds an opportunity, as he did with the other children, by befriending their parents, that [E.F.] befriends this mother who has a child, and finds a way to have contact with the child by supervising the child, i.e., essentially becoming a babysitter, as we see men with pedophilia often is one way of gaining access to.
So this is not happenstance, but rather [E.F.] taking advantage of an opportunity, and then acting on that opportunity to a point. There's no evidence that he actually sexually touched the child, but I don't think that's . . . the issue before the Court.
Harris opined that E.F.'s "convictions for sexual offending, plus his being with the child in July 2012, . . . all speak to his active interest, as well as his finding a strategy to have access to these young boys, . . . overwhelm his denial of . . . this arousal pattern," and diagnosed E.F. with pedophilia and "alcohol dependence in remission in an institutional setting." He stated that, although alcohol use may remove E.F.'s inhibitions, "what drives these offenses is the deviant arousal." While Harris "didn't think that [E.F.] met [the] criteria for any single personality disorder," he believed E.F. had "antisocial features" and "clear volitional impairments, as well as probably cognitive impairments, that have led him to be unable to control his sexual arousal."
Though Harris gave E.F. a score of two on the Static-99, indicating a low-moderate risk of reoffending, he stated "the Static[-99] . . . does not really reflect the repetitive nature of his offending. It doesn't account for his deviant arousal. It doesn't account for . . . the very events he created in July 2012 that put him and yet another child at risk." Harris believed E.F. was at a high risk for reoffending "unless he were confined to a secure facility for treatment," as E.F. had "demonstrated [by his CSL violation] that supervision was inadequate to control his behavior."
Dudek, the State's other expert, evaluated E.F. on September 5, 2013, and testified that, by telling one of his victims not to report the abuse because he could go to jail, E.F. had displayed "some degree of understanding . . . of right and wrong" at the time of his offense. Dudek opined that E.F.'s appreciation of the risk "seem[ed] to reflect a pattern — part of the behavior being quite purposeful at that time."
Dudek found certain aspects of E.F.'s offense history significant, stating:
[T]here is a great deal of consistency in the age ranges of the victims, between the ages of nine and 12 at the time when the behaviors occurred. Of course, all also certainly being male there's a pattern of becoming involved in relationships with individuals who . . . he gained access to . . . by being at the houses where the victims were staying at, either lived at or would visit on a regular basis, that the behavior is fairly consistent in terms of what he does with the victims, and that it seems to reflect a pattern of deviant arousal towards pre-adolescent males.
Dudek testified that E.F. attributed his actions to his alcohol use and denied being attracted to men or boys. However, Dudek opined that, while alcohol lowers inhibitions, "it wouldn't create a sudden arousal towards an object that they wouldn't be aroused to when sober."
Dudek also addressed the "significance of [the July 6, 2012 CSL] violation," stating:
[W]hile [E.F.] had indicated to me that that [incident] was the first time that he drank, he had indicated in a prior time that he had drank on several occasions . . . between 2010 and 2012, so there's some indication that potentially that there's been an on going problem with drinking. Additionally, that he would — while under supervision and while sensibly enrolled in — for several years in sex offender specific treatment, to agree to be in a circumstance where he could be alone with a child, even though the parent was nearby, which had occurred in the prior sex offenses, that it becomes an incredibly high risk situation to the point where it . . . starts to approach the lower threshold of almost being considered an imminent offense.
Dudek diagnosed E.F. with "pedophilia, sexually attracted to males, non-exclusive type[,] . . . alcohol dependence, currently in a controlled environment, [and] personality disorder NOS, with antisocial traits." He gave E.F. a Static-99 score of two, indicating a low moderate risk of reoffending, but, like Harris, assessed E.F. as being "highly likely" to reoffend "unless he were confined to a secure facility for treatment."
Defendant's expert, Lorah, testified that while the 2012 incident was "concerning, and it does present a risk factor for [E.F.]," he did "not consider it a sexual offense, nor [did he] consider it an . . . immediate risk for a sexual offense." Lorah diagnosed E.F. with "an alcohol use disorder in sustained full remission in a controlled environment." While he also diagnosed E.F. with "child sexual abuse encounter," so E.F. could obtain sex offender specific mental health treatment, he did not believe a diagnosis of pedophilia was appropriate, as the four incidents all occurred while E.F. was experiencing "extreme intoxication." Given E.F.'s intoxication during the assaults, Lorah also disputed that a diagnosis of antisocial personality disorder, or any other personality disorder, was appropriate. He testified the diagnostic criteria for personality disorders require that the symptoms cannot be "better explained" as being a result of alcohol abuse. He noted there were no incidents during the time E.F. was in prison or the Special Treatment Unit, and forced to be sober, to indicate E.F. had a personality disorder.
Lorah gave E.F. a score of two on the Static-99, indicating low moderate risk of reoffending, and recommended E.F. remain in sex offender specific treatment and substance abuse treatment. However, he did not "believe that [E.F.] suffers from a mental health abnormality or personality disorder that predisposes him to commit sexual acts of violence that would require [civil] commitment."
Following closing arguments, the court reviewed the evidence and expert testimony presented during the commitment hearing, and concluded E.F. was a sexually violent predator in need of involuntary commitment. The court found the State had presented "clear and convincing evidence that E.F. "suffer[ed] from a mental abnormality or personality disorder, that is pedophilia and antisocial personality underlain by a severe addiction to alcohol, and . . . will be highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment."
The court entered a judgment ordering E.F. be committed to the Special Treatment Unit. This appeal followed.
"The scope of appellate review of a commitment determination is extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (quoting In re D.C., 146 N.J. 31, 58 (1996)). "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)). "We give deference to the findings of our trial judges because they have the 'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Thus,
[a]n appellate court should not overturn a trial court's findings because it "might have reached a different conclusion were it the trial tribunal" or because "the trial
court decided all evidence or inference conflicts in favor of one side" in a close case. Johnson, supra, 42 N.J. at 162.
Accordingly, an appellate court should not modify a trial court's determination either to commit or release an individual unless "the record reveals a clear mistake." D.C., supra, 146 N.J. at 58. So long as the trial court's findings are supported by "sufficient credible evidence present in the record," those findings should not be disturbed. Johnson, supra, 42 N.J. at 162.
[Id. at 175.]
The SVPA authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-27.28(a). Sexually violent predators include those "who ha[ve] been convicted . . . of a sexually violent offense . . . and suffer[] from a mental abnormality or personality disorder that makes [them] 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.
Thus, to have a person committed under the SVPA, the State must prove by clear and convincing evidence 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."
[R.F., supra, 217 N.J. at 173 (citations omitted) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).]
The term "sexually violent offense" refers to offenses enumerated in the SVPA, including aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, and "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26. The term "'mental abnormality' means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. --------
Applying those standards here, we turn first to E.F.'s arguments that the court prematurely entered its order for temporary commitment and that the clinical certificates supporting the petition were defective because the psychiatrists conducted a joint evaluation of E.F. We note as a preliminarily matter that, because these arguments were not presented to the trial court, "[w]e could reject [them] on this basis alone." In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)), certif. denied, 188 N.J. 492 (2006). "However, because of the personal liberty interests at stake, we elect to consider the allegations of error under the plain error review standard. R. 2:10-2. Consequently, we move on to determine whether the alleged [deficiencies in] the State's evidence [were] clearly capable of producing an unjust result." Ibid.
We conclude from our review that E.F.'s arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say, E.F. has failed to establish how the premature entry of the order for temporary commitment, or the simultaneous evaluations conducted by Bajgier and Kushnier, whose reports were admitted without objection, impacted the court's decision, which was based primarily on the testimony elicited at trial. The judge's decision clearly relied on his assessment of the expert opinions of Dudek, Harris, and Lorah, without any reference to those of Bajgier or Kushnier. Similarly, the courts premature entry of the order had no effect on the outcome of the commitment hearing.
Turning to E.F.'s remaining argument, we conclude that the State demonstrated by clear and convincing evidence that he 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." W.Z., supra, 173 N.J. at 130-31. Accordingly, we find E.F.'s remaining arguments are also without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
"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.'" R.F., supra, 217 N.J. at 174 (quoting D.C., supra, 146 N.J. at 59). In making that determination, "[a] trial judge is not required to accept all or any part of [an] expert opinion[]." Ibid. (second and third alterations in original) (quoting D.C., supra, 146 N.J. at 61). "The ultimate determination is "a legal one, not a medical one, even though it is guided by medical expert testimony.'" Ibid. (quoting D.C., supra, 146 N.J. at 59).
Governed by these standards, we conclude the Law Division judge properly exercised his discretion by comparing and analyzing each of the testifying experts' conflicting opinions, choosing to accept those that he found more persuasive and credible, and concluding that E.F. should be committed.
"An individual may be considered to pose a threat to the health and safety of others if he or she were found, by clear and convincing evidence, to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 130. The experts who testified on behalf of the State provided a sufficient basis for the court's finding that E.F. suffered from the requisite mental disorders and that E.F.'s conduct leading to his July 2012 arrest demonstrated his inability to control his dangerous behavior. Our conclusion is not affected by the State's decision not to pursue the CSL violation based on E.F.'s contact with the young boy in July 2012, or by the absence of any proof of any sexual contact with the child.
We discern no reason to disturb Judge Pursel's order for commitment, as his findings were amply supported by credible evidence in the record and there was no abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
We note that "even a finding by the ADTC that a defendant is not eligible for sex offender sentencing does not preclude a later civil commitment of that defendant under the SVPA." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 629 (App. Div. 2009) (quoting In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 656 n.1 (App. Div. 2004)), aff'd, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).