Opinion
DOCKET NO. A-3281-12T2
04-18-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF W.W., SVP-667-13
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; George Loeser, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-667-13. Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; George Loeser, Deputy Attorney General, on the brief). PER CURIAM
W.W. appeals from the February 19, 2013 judgment committing him under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, to the Department of Correction's Special Treatment Unit (STU). He presents three arguments for our consideration: (1) the State did not present sufficient evidence to support a finding that he required commitment to the STU; (2) the trial court committed error when it relied on the hearsay report of a non-testifying expert in making its decision; and (3) the court erred in accepting the opinion of the State's expert witness, whose opinion was based on hearsay. Finding no merit in W.W.'s arguments, we affirm.
The point headings in the appendix of defendant's brief are not consistent with the point headings in the body of the brief. The inconsistency notwithstanding, we have addressed those arguments that appear in the body of the brief and warrant discussion.
This action's procedural history is not complex. In 2001, a jury convicted defendant of sexual assault, criminal sexual contact, and false imprisonment, and a judge sentenced him to an aggregate extended custodial term of twenty years with ten years of parole ineligibility. Defendant was scheduled to be released at the end of January 2013. On January 24, 2013, the State filed a petition for civil commitment under the SVPA. The court granted the State's petition and scheduled a final hearing on the issue of the continuing need for involuntary commitment. Following the February 19, 2013 hearing, the court entered the judgment and order of commitment from which defendant appeals.
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. Sexually violent predators include persons "who ha[ve] been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission 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: the person has been convicted of a sexually violent offense; the person suffers from a mental abnormality or personality disorder; and, as a result of such mental abnormality or personality disorder, "it is highly likely that the [person] will not control his or her sexually violent behavior and will reoffend." In re Commitment of R.F., 217 N.J. 152, 173 (2014) (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 "'[m]ental 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.
Indisputably, the State proved the first element, namely, defendant had been convicted of a sexually violent offense. Defendant does not argue otherwise. The State proved the second and third elements by presenting documentary evidence and the opinions of the only witness who testified at the commitment hearing, Dr. Indra Cidambi, an expert in psychiatry. Dr. Cidambi diagnosed defendant with Antisocial Personality Disorder, Paraphilia NOS, cannabis dependence, and alcohol abuse. The doctor testified the conditions she diagnosed do not spontaneously remit and require a significant amount of treatment. The doctor further opined defendant was highly likely to sexually reoffend if not confined to the STU. Because defendant's arguments on appeal challenge Dr. Cidambi's opinions and the foundational evidence upon which the doctor relied in forming her opinions, we review the State's evidence in some detail.
The State's proofs included the introduction into evidence of seventeen exhibits. The evidence disclosed defendant is in his sixties and has a long history of committing sexual offenses or sexually related offenses. In 1971, at age seventeen, defendant was charged with sodomy. He and other inmates at a county jail allegedly beat up a fellow inmate, repeatedly sodomized the victim and forced him to perform fellatio. Defendant admitted only to physically assaulting the victim and pled guilty to assault and battery. He received one year probation.
The State moved the exhibits into evidence simply by stating: "Your Honor, the State is offering into evidence P-1 through P-17, subject to the normal hearsay limitations." Defendant responded, "No objection other than with that qualification." The court ruled: "So admitted. P-1 through P-17, with the standard hearsay objections." Neither the parties nor the court explained the "standard" or "normal" hearsay limitations and objections, assuming there are such things. The admission of the exhibits under those circumstances did not preserve for the defense any hearsay objection. R. 1:7-2. We understand conducting thorough record reviews is time-consuming and often tedious. Such reviews, however, are part of preparation for a trial or hearing. We further understand a trial judge is less likely to be influenced by inadmissible hearsay than a jury. Nonetheless, once records are admitted into evidence, absent objection to their content, the factfinder determines how much weight, if any, to give to the content of the records.
The record includes two different dates as defendant's birthdate.
While on probation, before turning eighteen, defendant had sexual relations with a sixteen year old girl, for which he was charged with and convicted of carnal abuse, breaking and entering, and contributing to the delinquency of a minor. He served an indeterminate sentence at Yardville Correctional Facility.
In 1981, defendant was charged with intimidation and sexual assault. He claimed he had been falsely accused as retaliation because he had beaten up the woman's boyfriend. The grand jury declined to indict him.
In 1982, defendant was indicted for aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); sexual assault, N.J.S.A. 2C:14-2(c)(1) and (2); aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); criminal restraint, N.J.S.A. 2C:13-2(a); two counts of aggravated assault, N.J.S.A. 2C:12-1(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The victim was at the home of her boyfriend. Both were developmentally disabled. Defendant told the boyfriend his brother needed him, and the boyfriend left. The victim went to the bathroom, and defendant followed her, shut the door, and turned the lights off. The victim turned the lights back on, telling defendant to leave her alone. Defendant went upstairs and retrieved a rifle. He returned and told the victim if she did not have sex with him, he would kill her boyfriend. She complied. Afterwards, she reported the incident to the police and informed them defendant had previously forced her to have sexual relations with him.
Defendant maintained that sexual relations with the victim were consensual. He also alleged the boyfriend held a grudge, which motivated him to have the victim file the false charges. Nonetheless, defendant pled guilty to sexual assault and one count of aggravated assault. In January 1983, he was sentenced to four years imprisonment with a parole ineligibility period of eighteen months for sexual assault and a concurrent eighteen month term for aggravated assault.
After defendant was released from prison, he began boarding at a friend's home. The friend's adult son and daughter also lived there. The daughter was developmentally disabled. In June 1986, defendant walked into the daughter's basement apartment and found her wearing a robe. He forced her onto her bed and made her have sexual intercourse with him. She later reported the assault to the police, telling them this was not the first time defendant sexually assaulted her. A jury found defendant guilty of sexual assault and a judge sentenced him to a ten-year term with five years of parole ineligibility. In September 1989, the case was remanded to the Law Division and dismissed without prejudice at the request of the Monmouth County Prosecutor.
The reason for the remand and dismissal is stated as unknown in the parties' briefs. The appellate record does not reveal the reason the case was remanded to the Law Division.
The predicate offense for defendant's civil commitment occurred in February 2000. W.W. visited his nephew, E.P., at the hotel room where he was staying with his girlfriend, K.Z. Both E.P. and K.Z. are mentally challenged. At approximately 4:00 a.m. W.W. asked E.P. to go buy him a drink. E.P. did not have a car and the walk to the nearest store and back would take approximately one hour. While E.P. was out, defendant sexually assaulted K.Z. W.W. informed K.Z. if she told anyone, he would come after her. W.W. then left and K.Z. notified the police.
In addition to his convictions for sexual offenses, W.W. has been adjudicated delinquent for larceny of a motor vehicle and breaking and entering. He had been convicted of the following offenses: breaking and entering and malicious mischief; robbery; receiving a stolen motor vehicle; possession of marijuana; and manslaughter.
When Dr. Cidambi testified, defendant did not request a N.J.R.E. 104 hearing to contest her credentials or opinions. To the contrary, defendant stipulated to the doctor's expertise in psychiatry.
The doctor was not able to examine W.W. because he refused to speak with her. She reached her opinions based on W.W.'s medical, treatment, and criminal records. Dr. Cidambi testified that these are the types of documents typically relied upon by experts in her profession.
Dr. Cidambi's report was one of the exhibits admitted into evidence. When asked if she "were to testify in more detail than we may go into today, can you please tell us if your testimony would be consistent with your written report," the doctor replied: "Yes, it will be." Defendant did not object.
After recounting defendant's criminal history, Dr. Cidambi noted defendant's violation of parole four times between 1995 and 1999. According to the doctor, the violations demonstrated his "resistance to guidance from authority" and suggested community supervision might not work well, "because the history shows that he doesn't do well when he's still under supervision. He needs a structured environment like STU."
The doctor also noted defendant was twice evaluated at the Adult Diagnostic and Treatment Center (ADTC), once in 1983 and again in 1987. According to Dr. Cidambi, on those occasions he was not found to "fall under the purview of the New Jersey Sex Offender Act, and only by 2008 he was transferred to ADTC for treatment." The doctor noted defendant had received treatment at the ADTC from 2008 until transferred to the STU a few days before the hearing. While at the ADTC, defendant attended only fifty percent of the sessions and made no progress in sex offender treatment, failing to reach any of the goals set for him to achieve.
The doctor scored defendant's risk assessment on the Static-99R as a six. Although she found W.W.'s age to be a mitigating factor, she considered the score to indicate a high risk for sexual recidivism.
"The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., supra, 217 N.J. at 164 n.9 (citing Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). The Supreme Court "has explained that actuarial information, including the Static-99, is simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA." Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). --------
As previously noted, Dr. Cidambi diagnosed W.W. with Paraphilia NOS, which she explained as "recurrent, intense sexually arousing fantasies, sexual urges . . . or behaviors involving nonhuman objects, or suffering or humiliation of oneself or one's partner. And they offend against non-consent partners." She concluded:
[Defendant] . . . clearly meets the diagnosis because he sexually offended against multiple female victims, and possibly against one male victim, and also against their wishes. Sometimes he used threats and force while assaulting them sexually. His sexual offending history spanned close to [twenty-nine] years of his lifetime, and he has also had six charged sexual offenses against non—consenting individuals.
The doctor opined that defendant's cannabis dependence and alcohol abuse "increases his disinhibition and impulsivity, and it adds to the high risk of reoffending." She explained that her diagnosis of Antisocial Personality Disorder was based on defendant's history: "Starting in the adolescent age and continuing to adulthood the antisocial personality disorder does not go away." The doctor cited defendant's criminal record, his failure to conform to social norms, his disregard of other people's rights, his institutional charges, and his offenses while on probation.
In Dr. Cidambi's opinion, an individual suffering from both Paraphilia NOS and Antisocial Personality Disorder has an increased risk of sexual reoffending. If that same individual abuses drugs or alcohol, the risk becomes very high. The doctor testified these conditions do not spontaneously remit; rather, one can learn to control "the impulses to act out on these disorders" only through treatment. In her opinion, defendant had had nowhere near a sufficient amount of treatment. Consequently, he would have difficulty controlling his sexual offending behavior. The doctor opined defendant "is highly likely to sexually reoffend if not confined to the STU at this point in time."
Defendant presented no evidence. Following the presentation of the evidence, the court delivered its opinion from the bench. In its opinion, the court reviewed the documentary evidence, including defendant's extensive criminal history, part of which was reoffending while on probation. The judge noted, among other things, that in a 1987 evaluation for treatment at the ADTC, a doctor reported the offense committed by defendant was "most directly the result of his extremely antisocial aspect of his personality"; defendant was "a rather predatory individual who sees others as objects that are present solely to satisfy and gratify his immediate needs"; and defendant "experiences little remorse or concern regarding the negative emotional and physical consequences that his actions frequently have upon others."
The court found Dr. Cidambi's testimony credible. It concluded the State had clearly and convincingly established the statutory requirements for civilly committing a sexually violent predator. Defendant appealed from the implementing order.
Because judges who hear SVPA cases are specialists with expertise in the subject, their decisions are entitled to special deference. R.F., supra, 217 N.J. at 174. In addition, the SVPA judges "hear and see the witnesses and . . . have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). For those reasons, "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.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Applying this standard of review to the facts developed at defendant's commitment hearing, we reject defendant's three arguments on appeal. Defendant first contends the State failed to clearly and convincingly prove he required commitment to the STU. He argues that Dr. Cidambi's diagnosis of Paraphilia NOS was based "on a record of sexual offenses that contained a 1981 charge that was no-billed, and a 1987 [charge] that was dismissed"; her opinion included reports containing hearsay of juvenile records "that were long ago destroyed;" and her opinion that defendant offended against developmentally disabled women did not take into consideration he himself had a low IQ. Defendant's arguments are unavailing.
The doctor did not base her opinions solely on dismissed charges or juvenile records. She based her opinion on, among other things, the details of sexual offenses for which defendant had been convicted, his medical records, and his treatment records. The records provided an ample basis for the doctor's opinions, and the court did not err by finding the doctor's testimony credible.
True, the original juvenile records were not in evidence. However, records summarizing the juvenile offenses were among the exhibits admitted into evidence at the hearing. Defendant neither objected specifically to the content of those records when they were introduced into evidence at the hearing's commencement, nor did he challenge Dr. Cidambi's testimony that the records she relied upon were of a type reasonably relied upon by experts in forming opinions about sexual recidivism.
When the doctor testified, defendant objected to her reference to juvenile records on the ground that the original records had been destroyed, the records in evidence referring to the juvenile records therefore had no evidentiary value, and "there's no evidence of any of this." The court ruled, "that would go to the weight . . . not their admissibility, but the weight, and cross[-]examination should be able to take care of that." Considering the circumstances, the court's ruling was a proper exercise of judicial discretion. See State v. Brown, 170 N.J. 138, 147 (2001) (explaining a trial court's evidentiary rulings are entitled to deference absent an abuse of discretion, namely, a clear error in judgment).
Defendant next argues that Dr. Cidambi did not properly consider defendant's own I.Q. when the doctor based his opinion in part on defendant offending against developmentally disabled women. Defendant asserts, "[c]onsidering that his own I.Q. was in the low range, it is understandable that he would associate with others who are similarly situated." The argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant next argues the court erred in its decision by relying on a previous examination of defendant by a doctor at the ADTC. Defendant asserts the court's reliance on the report as substantive evidence violates the hearsay rule. Defendant does not cite to the location in the record where he objected to the admissibility of the specific exhibit containing the report. As we explained in footnote three, supra, his agreement at the inception of his hearing to the admission of all State's exhibits "subject to the normal hearsay limitations" did not preserve any specific objections. R. 1:7-2. We decline to address arguments not properly made in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In his final argument, defendant asserts the court erred by accepting the opinion of Dr. Cidambi, because her opinion was based on hearsay evidence. Defendant's argument appears to be based on two premises: his original juvenile records had been lost, and the doctor did not interview defendant.
We have previously addressed the issue of the juvenile records. Defendant's refusal to be interviewed by Dr. Cidambi is by no means fatal to her opinion. That defendant declined to be interviewed by Dr. Cidambi, and the consequent fact that Dr. Cidambi's opinion was based on information other than the interview, were matters to be taken into consideration by the judge in determining the weight to be given to Dr. Cidambi's testimony. Were we to accept defendant's arguments, any defendant could avoid civil commitment under the SVPA simply by refusing to be interviewed by the State's expert witness. See In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 640 (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).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION