Opinion
DOCKET NO. A-1371-14T2
03-14-2017
IN THE MATTER OF THE CIVIL COMMITMENT OF A.M., SVP-702-14.
Joseph E. Krakora, Public Defender, attorney for appellant A.M. (Nancy C. Hayes, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-702-14. Joseph E. Krakora, Public Defender, attorney for appellant A.M. (Nancy C. Hayes, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief). PER CURIAM
A.M. appeals from a November 5, 2014 order involuntarily committing him pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
A.M. came to United States in 1985 and was arrested the following year for several offenses. The first offense occurred in 1986, where A.M. grabbed a four-year-old girl from her mother and ran away with her. The mother chased A.M. and he threatened to kill her daughter if she did not undress. The mother fought with him and he fled the scene.
The second offense occurred in 1986 as well. A.M. attempted to lure J.O., a twelve-year-old girl, and a five-year-old girl who was with her, into his apartment. A.M threatened J.O. with glass to undress. He kissed her breasts, put his penis between her legs, threatened to kill her, and then urinated on her pants and underwear.
The third offense also occurred in 1986. A.M. threatened a fifteen-year-old girl with a knife and raped her. The fourth offense involved A.E., a twenty-nine-year-old woman. A.M. approached A.E. at a bus stop, threatened her, pulled up her dress and penetrated her.
In the fifth offense, A.M. lured E.T., a ten-year-old girl, into the woods, threatened her, pulled off her bra, kissed and bit her breasts and attempted to penetrate her. He then forced her to fellate him.
A.M. was arrested in September 1986, and was charged with seven counts of kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2); one count of robbery, N.J.S.A. 2C:15-1; three counts of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14- 2(a)(3) and (4); seven counts of terroristic threats, N.J.S.A. 2C:12-3(a) and (b); five counts of possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4(d); and four counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4). In April 1986, A.M. was convicted of one count of kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2); one count of terroristic threats, N.J.S.A. 2C:12-3(a) and (b); one count of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3) and (4); and one count of possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4(d). The remaining counts remained open. A.M. was sentenced to two consecutive nine-year terms with four years of parole ineligibility.
On April 26, 1988, A.M. entered into a plea deal for the remaining offenses. A.M. pled guilty to two counts of kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2); one count of robbery, N.J.S.A. 2C:15-1; one count of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3) and (4); and three counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4). He was sentenced to thirty years in prison with fifteen years of parole ineligibility, concurrent with his previous sentence. He was also sentenced to twenty-five years at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, with twelve years of parole ineligibility, consecutive to his 1988 sentence.
A.M. was resentenced in 1995. The resentence made his treatment at ADTC concurrent with his 1988 sentence. The remainder of his sentence remained the same. --------
A.M. was eligible for sex offender treatment at ADTC, but refused such treatment. On October 3, 2014, the State filed a petition to civilly commit A.M. under the SVPA. The court conducted a hearing on October 31, 2014 and the State presented testimony from Dr. Michael Kunz, a psychiatrist, and Dr. Nicole Paolillo, a psychologist. Dr. Kunz testified that A.M. suffers from paraphilic disorder nonconsent with frotteuristic tendency. Dr. Paolillo testified that A.M. suffers from other specified paraphilic disorder related to nonconsensual acts along with some frotteuristic features. She also diagnosed A.M. with pedophilic disorder and antisocial personality disorder.
Judge Freedman gave an oral opinion, finding that A.M. satisfied all the criteria for involuntary commitment. The judge explained that A.M. admitted he had sexual difficulties and impulses throughout his life and he made assaults upon women a total of five to seven times. The judge stated A.M. suffers from a mental abnormality and personality disorder, as diagnosed by the experts who testified, and the mental abnormality and personality disorder predispose him to engage in sexual acts of violence. The judge found A.M. would have serious difficulty controlling his sexually violent behavior and would be highly likely to reoffend.
On appeal, A.M. argues (1) he should be placed in a less-restrictive setting because the Static-99 test indicated he has low-moderate risk of recidivism; and (2) the State failed to produce clear and convincing evidence that he should be committed.
We conclude that A.M.'s arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the thoughtful reasons expressed by Judge Freedman in his November 5, 2014 oral opinion. We nevertheless add the following remarks.
"Review of a trial court's decision regarding a commitment hearing is extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (citing State v. Fields, 77 N.J. 282, 311 (1978)), certif. denied, 177 N.J. 490 (2003). The trial court's determination is given "utmost deference and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).
The SVPA allows the State to civilly commit "a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense[.]" N.J.S.A. 30:4-27.26. "Under the SVPA, the trial court must determine whether the individual 'suffers from a mental abnormality or personality disorder,' and whether, as a result of his or her condition, the individual is highly likely to reoffend unless he or she is confined." In re Civil Commitment of D.Y., 218 N.J. 359, 385 (2014) (quoting N.J.S.A. 30:4-27.26).
We reject A.M.'s argument that he should be placed in a less restrictive setting because his Static-99 score of two placed him in the low-moderate range of risk to reoffend. "[A]ctuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).
Moreover, Judge Freedman explained that both experts gave little weight to the test. Dr. Paolillo found the score to be "an underestimate" and the dynamic factors increased A.M.'s risk to reoffend. Dr. Kunz testified that the Static-99 test did not "capture the full spectrum of risk factors." He also stated that the Static-99 test should be given less weight because certain items may be incomplete because there was no criminal history on A.M. prior to him entering the country. Therefore, the judge did not abuse his discretion when he did not give the Static-99 test much weight.
A.M. next contends the State was unable to prove by clear and convincing evidence that A.M. suffers from a mental abnormality or personality disorder, which would predispose him to commit an act of sexual violence in the future. He argues that the experts' findings were not reliable because they were based on various evaluations over a thirty-year span. A.M. contends that Dr. Paolillo was the only person to diagnose him with "other specified paraphilic disorder, and pedophilia," and therefore her diagnosis is not credible. He also argues that her diagnoses are not credible because she conceded she did not have enough information to administer a HARE test, a diagnostic tool used to rate a person's psychopathic or antisocial tendencies.
N.J.S.A. 30:4-27.26 defines mental abnormality as "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." "The Legislature's use of the adjectives 'volitional,' 'emotional,' or 'cognitive' . . . indicates that the Legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the [SVPA's] reach." In re Commitment of W.Z., 173 N.J. 109, 129 (2002). Moreover, "the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" Ibid.
Here, Judge Freedman explained past reports and the hearsay therein could be utilized because the reports were the types of documents typically relied on by experts in conducting risk assessments. See In re Commitment of J.M.B., 197 N.J. 563, 597 n.9, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); N.J.R.E. 703. Moreover, both experts relied upon these reports because A.M. refused to interview with them. They testified that the records contained sufficient information for them to make diagnoses and conclusions with a reasonable degree of psychological certainty without an interview.
There was sufficient information for Dr. Paolillo on which to base her evaluation. She testified at length about A.M.'s sexual history, prior testing, and criminal history. Although Dr. Paolillo stated that she did not have enough information to conduct a HARE test, she explained that the test is best administered with an interview.
Dr. Paolillo was also not obligated to agree with previous evaluators' diagnoses and maintained that all the opinions in her report were her own. See In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 640 (App. Div. 2009) (stating "[a]s long as the opinion ultimately rendered at the initial commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data, the testimony is admissible"), aff'd, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).
A.M. further argues that Dr. Kunz's testimony was "flawed" because he met with A.M. fifteen days before the commitment hearing, while N.J.S.A. 30:4-27.30(b) required the doctor to meet with A.M. no more than five calendar days prior to the court hearing. He raises this argument for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).
We have permitted the testimony of the committee's reviewing doctor where the doctor did not request an examination within the statutory timeframe. See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.), certif. denied, 188 N.J. 492 (2006). In A.H.B., we stated that we would "not allow [the committee] to reject examination and then complain about the State's failure to present more recent testimony, especially [] where the State could reasonably infer from [the committee]'s prior obstinacy that an additional request would have been similarly resisted." Ibid.
Here, Dr. Kunz met with A.M. on October 16, 2014, and A.M. refused to participate in the evaluation. Dr. Kunz stated that A.M. provided a "lengthy explanation" about why he declined the evaluation. At no time did Dr. Kunz evaluate A.M. Dr. Kunz could have reasonably inferred from A.M.'s explanations that A.M. would have refused an evaluation again if he made an additional request for it.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION