Opinion
DOCKET NO. A-2128-11T2
07-24-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF D.B., SVP-337-03
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-337-03.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief). PER CURIAM
Appellant D.B. appeals from the December 12, 2011 order continuing his involuntary commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he contends that the State's experts used appellant's unindicted and dismissed charges as "significant building blocks" in formulating their diagnoses and conclusions, in violation of appellant's constitutional rights to due process, equal protection, confrontation, and our decision in In re Civil Commitment of A.E.F., 377 N.J. Super. 473 (App. Div.), certif. denied, 185 N.J. 393 (2005).
We have reviewed appellant's contentions in light of the record and applicable law, and we affirm.
I.
Appellant is a forty-three year old male with an extensive history of sexual offenses and other criminal behavior. That history includes numerous arrests for sexual assaults on non-consenting adult females, and a 1995 conviction for a first-degree sexual assault (and attempted murder), which qualifies as one of the predicate "sexually violent offenses" under the SVPA. N.J.S.A. 30:4-27.26.
His conviction arose out of his sexual assault of B.G. in July 1994. Appellant said that he knew B.G. because they had previously dated. On the night of the assault, he knocked on B.G.'s apartment door and asked if he could use the bathroom, which she allowed. Once inside, he wrapped a sock around B.G.'s throat, threw her down, and threatened to kill her if she did not remove her clothes. B.G. complied with his demand and undressed. Appellant maintained a stranglehold on B.G., causing her to lose consciousness, after which he raped her. Prior to leaving her home, he also took cash from B.G.'s purse.
When he was interviewed by the police about the incident, appellant became very emotional, started to cry, and reported that a man named "J.Y." forced him to commit the crime. He also reportedly yelled, "I know you shot [J.Y.]. They said I did it but you're the one that killed him." He later pled guilty to first-degree sexual assault, N.J.S.A. 2C:14-2(c), and first-degree attempted murder, N.J.S.A. 2C:11-3(a), 5-1(a). This offense was appellant's only conviction, and a court sentenced him to fifteen years on each count, to run concurrently.
Appellant's criminal history revealed that he had been charged with committing similar offenses in the same manner before his conviction. For example, just a few months prior to the predicate offense, police arrested and charged appellant in March 1994 with the first-degree aggravated sexual assault, N.J.S.A. 14-2(a)(3), (a)(6), of L.E., his son's mother. Police reports indicate that the victim L.E. entered appellant's apartment to drop off shoes. She was under the impression that his mother was also present in the home. Appellant locked her in the apartment, and removed her clothing. When she resisted, he punched her. He held her in his apartment throughout the night against her will, repeatedly raping and beating her. She was unable to leave until he went to the store the next morning. Appellant was subsequently arrested and charged. The case was later no billed, by a grand jury.
Earlier, in February 1994, appellant was arrested and charged with a fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), against D.P., who was L.E.'s friend at the time. According to police reports, he knocked on D.P.'s door and asked to use the restroom, which she permitted. He then grabbed D.P. around the waist and she pushed him away. He touched her buttocks and again D.P. removed his hands. She then picked up her baby and asked appellant to leave. Appellant refused to leave and D.P. insisted. He eventually left the home. Appellant was subsequently arrested and charged. A municipal court required defendant to pay court costs and closed his case.
In April 1991, according to police reports, appellant approached R.H., a stranger, who was walking down the street. While holding a knife, he ordered her to accompany him, and threatened to cut her if she refused. R.H. attempted to run, but he grabbed her and punched her in the mouth. He brought R.H. to an apartment and raped her. When she started to yell, appellant allegedly choked her and she passed out. When R.H. awoke, she was on the ground behind the apartment building. Appellant was arrested and charged with sexual assault. The charges were later no billed by a grand jury.
Finally, police reports state that in December 1990, appellant went to his then-girlfriend C.P.'s home, rang the doorbell, and requested to use her bathroom. She agreed, and upon entering her home, he demanded that C.P. turn off the lights. She refused to comply and appellant went to the restroom. He then grabbed C.P. around the neck, hit her, and raped her. C.P. later reported the incident after appellant left the apartment. He was arrested and charged with sexual assault. That case was also no billed by a grand jury.
On September 24, 2003, the State successfully petitioned for appellant's involuntary commitment pursuant to the SVPA. Later, it similarly successfully applied for appellant's continued commitment. We affirmed both of those determinations.
In re Civil Commitment of D.M.B., A-3896-03 (February 15, 2006); In re Civil Commitment of D.M.B., A-4406-08 (October 13, 2009).
The instant appeal arises out of his most recent review which was held on December 12, 2011 before Judge John H. Pursel, who continued appellant's commitment. At the hearing, the State presented the testimony of psychiatrist Howard Gilman and psychologist Jamie Canataro. Appellant did not present any expert psychiatric or psychological witnesses. He called as witnesses Hawaiian Thompson-Epps, an advocate representative with the Office of the Public Defender, and K.B., appellant's sister, to testify on his behalf. Appellant also testified.
Dr. Gilman testified that he had attempted to conduct an examination of appellant on November 25, 2011, but appellant refused to participate. However, the doctor had interviewed appellant on two previous occasions, April 11, 2011 and June 23, 2010, and he did not expect there to be a difference between his April 11 interview and the scheduled interview. Notwithstanding appellant's refusal to participate in the interview, the doctor issued a report and was able to render an opinion as to appellant's condition within a reasonable degree of psychiatric certainty. He had also produced a report based on his April 11 assessment.
In reaching his conclusions, the doctor relied on sources including "police reports, legal reports, psychological and psychiatric reports, medical reports and other reports pertaining to the issue at hand." He read reports containing "diagnostic opinions, treatment opinions, [and] risk opinions." This included a report by psychologist Mark Frank, who worked for the Adult Diagnostic and Treatment Center and who evaluated appellant on August 1, 1995. Dr. Gilman confirmed that "[t]hese are the normal sources that a forensic psychiatrist looks at in terms of preparing an opinion and a report." He consulted these sources, but ultimately formed his own opinions and diagnoses.
In his consideration of appellant's criminal history, including offenses that were ultimately unindicted, the doctor explained,
[W]e're looking at behaviors as psychiatrists. And as we look at behaviors we look at behaviors regardless of whether they end up with convictions or not. Legal standards are different than psychiatric standards. And if there is data that is important from psychiatric point of view, even though it may not lead to an actual conviction or even a charge, that would be important information. For instance, there are sometimes in these reports where there will be sexual behaviors that don't even lead to arrest or charges, but they become important in terms of one[']s overall opinion.
Describing the April 11 interview, Dr. Gilman said appellant "was awake, alert, interactive, able to concentrate on the questions asked of him, there was no indication of any kind of psychotic process, there was no indication of any severe mood disorder." The doctor described appellant's offending history as "approximately four to five years of repeated sexual assaults ultimately resulting in one criminal conviction from an assault that occurred in 1994, . . . but there are . . . . four . . . previous arrests for . . . alleged sexual assaults . . . many of which have elements that were described in his conviction."
The doctor noted that the alleged offenses occurred in close succession, and that some occurred while he was free on bail for earlier offenses. Dr. Gilman described appellant's modus operandi as established by his repeated behavior:
[H]e often used a ruse in order to gain access to his victim, knocking on the door, saying he had something to deliver, asking to use the bathroom. Once next to his victim, threatening his victim with physical harm or actually physically harming her by punching her, threatening her with a knife, choking her and then reports of sexually assaulting the victim.
The doctor also described the role of violent force in appellant's behavior. For example, he noted that while the victim of the July 1994 offense had indicated to appellant that she would not resist, appellant still maintained his stranglehold and beat her. This was consistent with appellant's reporting to Dr. Frank that, "Forcing someone to have sex makes me stronger, makes me feel power."
Dr. Gilman also testified to appellant's unwillingness to discuss his criminal conduct. When he asked appellant about his offenses, appellant "basically refused to talk about them. . . . He admitted to being arrested three times on sexual charges, but he stated that they were no billed and he had nothing else to say."
As to his treatment progress, Dr. Gilman testified that appellant remained in phase II of his treatment. The doctor expected that, having had eight years of treatment, appellant would have progressed to phase III or IV. Dr. Gilman described phase II as "introductory level." He described phase III in contrast:
Phase III is kind of the heart of treatment where one is really actively pursuing their treatment as a sex offender, the[y're] involved in a variety of psychological education modules, they're working hard on those modules, they're making their autobiography and their sexual history questionnaire, they're possibly taking polygraph examinations, [they're] possibly being considered for the therapeutic community, if there is one.
According to Dr. Gilman, appellant's participation in treatment was superficial and minimal. His attendance was inconsistent, and he made superficial efforts in his writing assignments. Appellant had withdrawn from several modules, and refused to attend treatment progress review meetings. He had no real understanding or command of his sexual offense cycle or relapse prevention strategies. However, the doctor noted that appellant had revised his sexual history questionnaire. Dr. Gilman further testified about appellant's attitude toward treatment:
Generally, his stance is that people have treated him unfairly. Sometimes that's
overtly stated and sometimes it's only covertly evident. But when I interviewed him, for instance, I asked him why [he] had never advanced beyond Phase II and he replied that he had never been recommended for a higher level and that when he asks his treatment team why he's not advanced he doesn't get answers from them.
He stated that he finished written requirements including a sexual history questionnaire and autobiography; and, again, implied both verbally, as well as in this kind of attitude that . . . he really should be moved along. However, when you . . . read the treatment notes, there's not a lot of indication that he has completed those requirements.
The doctor diagnosed appellant with sexual sadism, noting that "an important part of [appellant's] pathology is to induce intense fear . . . and/or physical harm to his victims as part of his arousal process." The doctor noted the significance of appellant's battering his victims in addition to sexually assaulting them, because
it raises the . . . issue of . . . sexual sadism. Whether [appellant's] sexual drive was such that he was compelled, if you will, to . . . physically harm her in other ways besides sexually assaulting her in order to satisfy his own arousal. In other words, whether harming his victim in other ways besides sexually assaulting her was important to his arousal scenario. And it's my contention that it is.On cross examination, however, the doctor testified that he did not know how long B.G. was passed out for during the predicate offense. Appellant's counsel intimated that this undermined the idea that appellant was aroused by B.G.'s fear, because she was allegedly unconscious during the encounter.
. . . .
. . . [Appellant] was not aroused simply by the sexual act itself, but required some
form of power, control, fright or actual physical harm in order to be aroused.
The doctor's diagnoses also included alcohol dependence, in institutional remission, and antisocial personality disorder, based on appellant's long history of defiant, aggressive and criminal behavior, dating back to his childhood. Dr. Gilman testified that appellant's antisocial personality disorder, when combined with his sexual sadism, made him more likely to reoffend. Dr. Gilman graded appellant on a Static-99, a risk assessment tool for sex offenders. Based on a scale from zero (low risk) to six plus (high risk), appellant scored a five. He further opined that appellant's alcohol dependence would not necessarily increase appellant's risk, but that it would tend to lower his inhibitions and increase his impulsivity. He said that these conditions would not spontaneously remit, and that they effected appellant emotionally, cognitively or volitionally, so as to predispose him to commit acts of sexual violence.
The doctor concluded that appellant "continues to be basically an untreated sexual offender." The doctor said appellant had not undergone enough treatment to reduce his risk, and that "[t]he only real reduction in [appellant's] risk has been by his increasing age, he's now 40." However, the doctor opined that appellant's age was not enough to reduce his risk of reoffending "beyond highly likely."
Dr. Canataro, a member of the Treatment Progress Review Committee (TPRC) at the STU, which reviewed appellant annually to assess his progress and recommend future treatment, testified that TPRC last reviewed appellant's progress on May 17, 2011. Dr. Canataro prepared a report as part of the review, in the normal course of business. The TPRC report was submitted as evidence at the hearing, and Dr. Canataro gave testimony consistent with that report.
The TPRC and Dr. Canataro based their opinions and recommendations on police reports and victim statements, treatment records including group notes, multidisciplinary reports, Dr. Frank's report, and a clinical interview with appellant. She said these sources were of a type normally relied upon by persons in her profession when making these types of assessments. Some portions of the materials contained diagnoses, but Dr. Canataro said that she formulated her own.
The doctor said she interviewed appellant for approximately forty-five minutes. She described appellant's demeanor as appropriate, pleasant and cooperative throughout, and said he answered all of her questions. Appellant "would become defensive at times, he would refuse to discuss some offenses, but he did it in a respectful manner and he explained why." He asked for direction. He also wanted to know why he had not been moved forward in treatment.
After the interview, the TPRC recommended that appellant remain in phase II. Dr. Canataro described phase II as the "rapport building stage," in which a resident might participate in groups but is not fully engaged in treatment. In contrast, "to get into Phase III a resident would have to identify their core treatment issues and begin working on them." As she further explained:
We recommended that [appellant] continue in Phase II because [appellant] . . . does appear to go to treatment, but he does struggle with his attendance, a lot. The review period that he was being evaluated for, he participated in three modules that he did not complete. So he will enroll in modules, he will not complete them; he will sometimes struggle with his attendance in his process group; and he struggles with his attendance in self-help groups, as well.
. . . [Appellant] has sexual offenses for which he was charged and he was not convicted for. [He] adamantly denies these
offenses. And . . . it's [his] belief that that is what holds him back in treatment. Certainly, if he was willing to discuss these offenses more, that would help him into Phase III, but that's not the sole reason why we did not advance him. For the reasons that I mentioned is what we really focused on, his lack of engagement in treatment is really our focus.
According to Dr. Canataro, as to appellant's uncharged offenses, appellant "says that they never happened and . . . his most recent offense that he was convicted for [appellant] says that he doesn't remember it happening." But the doctor noted that this claim was inconsistent with the police report of the incident, in which appellant admitted to police officers that he raped B.G. Dr. Frank's report stated that appellant disclosed three sexual assaults, reportedly in response to auditory hallucinations of commands from his deceased cousin J.Y.. "So even [appellant's] version of the predicate offense has changed over time." As the doctor further testified, appellant said "he was highly intoxicated on drugs and alcohol and that is his motivation for offending this victim [B.G.]."
Dr. Canataro said that she "spent a significant amount of time in the interview" explaining to appellant that his denying his offenses was not the sole reason for his lack of progress. She said there were multiple modules and self-help programs that he could participate in that do not focus on his sex offenses, including family of origin, anger management, and substance abuse groups. While the doctor opined that appellant would not gain a "superb understanding of his sexual offending cycle," he could nonetheless progress to phase III while denying his offenses, so long as he discussed them and engaged in treatment.
She graded appellant a four on the Static-99. In assessing his level of risk, she took into consideration his conviction, as well as his non-conviction charges. The doctor testified that she did not give as much weight to the unindicted offenses as she did to appellant's conviction. Nonetheless, they were factored into his risk assessment because the factual circumstances surrounding them were so similar to that of the conviction.
The TPRC and Dr. Canataro diagnosed appellant with paraphilia, not otherwise specified, non-consent, based on his arousal from non-consensual sex. She also noted that appellant's choking the victim was "reinforcing, so he's liking these behaviors and continuing them." They also diagnosed polysubstance dependence, in a controlled environment. The doctor noted that appellant had completed "a module or two" relating to substance abuse, and recommended that he continue to participate in modules and attend self-help groups such as AA or NA. Finally, they diagnosed appellant with an anti-social personality disorder, based on appellant's
history of involvement in the legal system, lack of cooperation with supportive efforts and lack of remorse indicat[ing] that his personality structure is heavily based on poor impulse control, disrespect for the law, aggression, lack of remorse, reckless disregard for the wellbeing of others, and failure to conform to social norms with respect to lawful behaviors.The TPRC recommended that appellant attend and participate in treatment more consistently, and that he complete his autobiography.
Ms. Thompson-Epps testified that she had created a discharge plan for appellant. The plan was prepared after her meeting with appellant to discuss his post-discharge plans, and verifying with his various family and friends how they would support and help him in his plan. She also spoke with a social worker and the TPRC, both of which recommended against appellant's discharge.
Appellant's plan was to live with his brother, and to attend Irvington Counseling Center which was near his brother's home, while he was under parole supervision and wearing a monitoring bracelet. According to Thomson-Epps, the center was used by other STU clients, and offered anger management, drug treatment, and sex offender treatment. Appellant could also attend the Kintock treatment center on weekends.
Appellant reported to Thomson-Epps that he had money saved, and his family confirmed that they were willing to provide financial support. He said he was willing to comply with treatment recommendations. Thompson-Epps confirmed that his support system would be mainly comprised of his family members, including an uncle who had offered him employment. Thompson-Epps noted that appellant's brother and sister were particularly supportive, consistently returned phone calls and appeared at his hearings.
K.B., appellant's sister, testified that she was willing to provide appellant support if he were conditionally discharged. She said that she and her other brother, M.B., would support appellant financially "100 percent." She understood that he was a convicted sex offender. In the event of his non-compliance with treatment, K.B. said that they would "have a family discussion with him, because usually we all talk to each other, even my younger sister, we all talk to him constantly, every day." She said that the family would be reaching out to him through phone calls and visits to make sure that he was complying with treatment. K.B. also noted that it was M.B. who had convinced appellant to turn himself in for the predicate offense.
Appellant testified about his history, including his unindicted offenses. He denied sexually assaulting C.P. in 1990, but said that he hit her. He also denied the 1991 offense, and said that he did not know a woman by R.H.'s name. As to L.E., he said they had consensual sex, and that he later punched her in the face after an argument "maybe an hour or two" later. He did not know why she accused him of sexual assault. Appellant also said that D.P. was L.E.'s friend. He said he was at a club "dancing with two other wom[en] and [D.P.] walked by and [he] smacked her on the butt," which was inconsistent with appellant's original statement to police that the offense took place at a party, and with D.P.'s account that the incident occurred in her home.
This was inconsistent with Dr. Frank's 1995 report stating that appellant admitted to sexually assaulting C.P., but denied hitting her.
As to the July 1994 offense, for which he was convicted, appellant claimed not to remember the full details. He said he did not recall sexually assaulting B.G. He said he went to her apartment to give her the keys to the apartment, as B.G. was renting it from his family at the time. He said he used her bathroom and when he came out, he started punching her, as he was angry and stressed out after recently losing his job. He said he was also drunk and that that was a "factor." Appellant said that he knew B.G. because they had previously gone out on a few dates. He said he never asked her for sex, and that he simply remembers leaving after he hit her. He denied telling the police that he raped B.G. while she was unconscious, or that he told the police that his deceased cousin J.Y. instructed him to rape her. He also denied telling Dr. Frank that he experienced auditory hallucinations of J.Y. commanding him to commit the offense. As appellant further testified,
[T]hat's what I tell the treaters [sic] here. I mean, everything from that night. I can't remember every incident. But I took responsibility for what I could remember and my attorney said, well, listen, you did this. And I'm saying, okay, I know I did something wrong that night. Then I went to her house, brought her the keys, used the bathroom, came out, grabbed her, started choking her and she fell.
He said that on the next day, his brother "snatched" him up by the collar and threw him against the wall, accused him of rape, and demanded that he surrender to the police. His brother then brought him to the police station.
As to his treatment, appellant said he had not been given a "fair shake" by the doctors. He said he had discussed his predicate offense. However, he was told that he could not advance unless he admitted to the unindicted charges. He said he was revising his sexual history questionnaire for the fourth time, because his previous responses were not satisfactory. Specifically, he admitted to committing acts of non-sexual physical violence against women. However, appellant said that the treatment team said that this was "wrong" and that he should disclose his other deviant behavior. According to appellant, he did not know "what [to] put on there if I didn't commit a sex offense, if I don't have any other deviant behavior." He also said he had not taken a polygraph, because the test was based on his answers to the sexual offender disclosure questionnaire and because he was told by a Dr. Iser that he would fail the polygraph as he had been arrested for a sex offense.
Appellant explained his lack of attendance and participation in treatment as resulting from his missing more than three days of a module, after which he would be withdrawn. He said he has missed out on treatment for work reasons, and because sometimes the program was not announced. He said that at times the prison would be shut down and that he would have to miss another day. He also admitted to two disciplinary infractions, for failing to comply with an officer's instructions, and for urinating in a van.
Appellant said that he was "highly likely" to comply with a treatment plan if conditionally discharged, "because it's something that I know is required for me to do for myself and for others." He said that the possibility of going back to prison would deter him from not complying. Appellant said he was not the same person he was seventeen years ago. He said he would not drink again, as we was "older, wiser, and . . . really learned stuff in substance abuse. . . . [a]bout . . . what it does to your mind . . . body and everything."
After all testimony was presented, appellant's counsel argued that the State had failed to prove that appellant continued to be a sexually violent predator within the meaning of the SVPA. Counsel emphasized the State's reliance on appellant's unindicted offenses, which he argued were not credible. The State argued that it had met its burden of proof under the SVPA. It further noted that appellant's continued commitment had previously been affirmed by the Appellate Division after two prior review periods. Furthermore, the State argued that appellant had no credibility, and noted that he had spoken of his auditory hallucinations as recently as September 14, 2011.
After reviewing the evidence and considering all of the testimony, the court found by clear and convincing evidence that appellant suffered from a mental abnormality that made him highly likely to commit further acts of sexual violence if not confined in a secure facility for control, care and treatment. The court relied upon the fact that appellant had not progressed beyond phase II of treatment since his initial commitment in 2003. It noted that his lack of progress had been "[t]he consistent reasons for [appellant's commitment] both through the evaluators, the STU team and the Appellate Division[.]" The court also noted that appellant had been under review many times, and referred to his treatment progress as "static."
The court summarized his record of sexual offenses, including his dismissed and unindicted offenses. It noted appellant's counsel's argument that those offenses should not have been considered by the experts in rendering their diagnoses. However, the court stated that Dr. Canataro considered the accounts of the unindicted offenses because the factual circumstances surrounding them were so similar to those underlying appellant's conviction.
The court also noted that appellant's record had previously been reviewed by the Appellate Division, which "was careful to acknowledge that they were not particularly concerned with the method which was used by evaluators to deal with the . . . non-convicted offenses, but that they are part of the analysis and based their decision primarily on his lack of treatment or his success in that treatment program."
The court reviewed his participation in treatment, noting that he completed programs in substance abuse and stages of change. Appellant did not complete relapse prevention and victim empathy due to his absences. "When the resident was asked what the absences involved [he said] they had nothing to do with him, of course, but had to deal with institutional delays, institutional shut downs, institutional lock downs, dental appointments, doctor's appointment and various other issues completely out his control." The court stated that appellant was not participating enthusiastically in his treatment. It summarized appellant's position:
The resident's treatment, or his position on these matters is . . . that either these four offenses, which are very similar to the predicate offense never occurred or they occurred after the predicate offense or he doesn't remember because he was so drunk or under the influence of drugs that he can't remember whether or not he accomplished these acts.
The court credited Dr. Frank's report, noting it has been available since 1995, has had very little criticism, and has been relied on in the past by experts evaluating appellant's record. The court commented on appellant's equivocating about the polygraph, claiming, "I can't take the polygraph because I didn't commit these offenses. On the other hand, I can't discuss these offenses because they're not of record." The court also credited Dr. Gilman's diagnoses of sexual sadism, alcohol dependence, and anti-social personality disorder, based on the accounts of appellant's offenses in the record.
As to appellant's witnesses, the court noted that appellant did not produce any expert to refute Drs. Gilman or Canataro's opinions. As to testimony about appellant's discharge, the court believed that appellant's family would be supportive of appellant if he were released. However, as noted, the court ultimately found that due to appellant's lack of progress in treatment, the risk that he would reoffend was too high at this time
II.
The SVPA authorizes the State to petition for an offender's involuntary commitment after he has completed at a h serving his sentence. N.J.S.A. 30.4-27.28. To this end, the State must present at a hearing "clear and convincing evidence" that the offender 1) "has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense"; 2) "suffers from a mental abnormality or personality disorder"; and, as a result, 3) is "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. A "mental abnormality" is one "that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. One is likely to reoffend if he poses a danger to himself and others because of his present serious difficulty in controlling his dangerous sexual behavior. In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).
After the initial commitment, appellant's continued commitment is subject to annual review. N.J.S.A. 30.4-27.35. At each review, the State must again prove by clear and convincing evidence that appellant continues to meet the criteria for commitment. N.J.S.A. 30.4-17.32.
"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)) (internal quotation marks omitted). We defer to the commitment court's factual- and credibility findings in light of its opportunity to observe witness testimony firsthand, and to develop a "feel" of the case. Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We also regard commitment judges as "specialists," and defer to "their expertise in the subject." Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). We will uphold a commitment judge's findings that are supported by "sufficient credible evidence present in the record." Id. at 175 (quoting Johnson, supra, 42 N.J. at 162). We do not modify a commitment determination unless "the record reveals a clear mistake. Ibid (quoting D.C., supra, 146 N.J. at 58).
As already noted, appellant argues that the court erred in allowing the State's experts to use appellant's dismissed and unindicted offenses as "significant building blocks" for their diagnoses and conclusions. Furthermore, he contends that the treatment team had placed him in a "catch-22" situation, as he was forced to choose between making gains in his treatment and admitting to offenses for which he was never convicted.
It is well-established that experts may rely on hearsay evidence in making their diagnoses, so long as the documents reviewed are of a type normally relied upon by persons in their profession when making these assessments. N.J.R.E. 703. They may rely on presentence reports, ADTC evaluations, In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) certif. denied, 183 N.J. 586 (2005), and criminal histories, In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (citing State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001)), certif. denied, 179 N.J. 312 (2004). Such reliance is acceptable as long as the experts formulate their own opinions, and do not simply "parrot" the conclusions of the non-testifying experts. A.E.F., supra, 377 N.J. Super. at 491-92.
In this case, both experts testified that they relied on documents of a type normally used by persons in their professions when making these types of assessments. The experts considered the accounts of appellant's unindicted offenses because they were numerous and the surrounding factual circumstances were consistent with the offense for which he was convicted. However, their conclusions, and ultimately Judge Pursel's, were based on appellant's apparent lack of engagement and progress in his treatment, and not on whether appellant in fact committed any of the unindicted charges.
We are convinced from the experts' testimony that, contrary to appellant's "catch-22" argument, in order for him to advance he did not have to admit to committing the unindicted offenses.
--------
We are satisfied that Judge Pursel's findings were supported by sufficient credible evidence in the record, and we find no "clear mistake" in his determination that appellant should remain committed because his treatment progress remains stagnant without any meaningful progress causing him to remain "highly likely" to reoffend.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION