Opinion
DOCKET NO. A-1443-12T2
06-23-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF J.P., SVP-650-12.
Joseph E. Krakora, Public Defender, attorney for appellant J.P. (Maritza Rodriguez, 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; Laura T. Mastriano, 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NOT FOR PUBLICATION WITHOUT THE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 the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-650-12.
Joseph E. Krakora, Public Defender, attorney for appellant J.P. (Maritza Rodriguez, 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; Laura T. Mastriano, Deputy Attorney General, on the brief). PER CURIAM
Appellant J.P. appeals from the October 17, 2012 order committing him involuntarily 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, appellant argues "the state failed to produce clear and convincing evidence that [appellant]. should be committed as a sexually violent predator [because] [t]here was insufficient evidence to support a finding that [he] suffers from a mental abnormality or personality that affects his emotional. cognitive or volitional capacity in a manner that predisposes him to commit acts of sexual violence." We have considered appellant's contentions in light of the record and applicable law and affirm.
Appellant is a fifty-eight-year-old male with an extensive history of sexual offenses and other criminal behavior, including sexual assaults on prepubescent female children, which resulted in later convictions and one non-conviction charge. He is currently confined as a result of his 2004 second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), conviction arising from the sexual assault of his then ten-year-old niece. He was sentenced to a ten year term, to be served at the Adult Diagnostic and Treatment Center (ADTC), and to community supervision for life. He later appealed, and we affirmed his conviction in 2007.
At the expiration of his sentence, the State petitioned for appellant's involuntary commitment pursuant to the SVPA, relying on his 2004 convictions as the predicate offenses. The State also submitted certifications by psychiatrists Sureshbabu Kura and Marina Moshkovich, stating that appellant was a sexually violent predator. A temporary order of commitment was entered on July 5, 2012. A hearing on the matter was conducted on October 17, 2012, before Judge John H. Pursel. The State entered numerous documents into evidence, including appellant's pre-sentence reports, ADTC evaluations, police and investigation reports, clinical certificates, and the testifying experts' reports. Appellant's counsel unsuccessfully objected to the admission of reports that contained hearsay. The State also presented testimony from psychiatrist Roger Harris, and psychologist Doreen Stanzione.
Dr. Harris testified about his opinions and conclusions within a reasonable degree of medical certainty. Shortly before the hearing, Dr. Harris prepared a report about appellant, which he wrote in the normal course of business. He said he had tried to interview appellant on three different occasions, but was unsuccessful. On the first attempt, appellant said that he would not proceed with the interview, because he had not yet spoken with his lawyer. The second time, appellant said that his lawyer had advised him not to participate in the interview. Finally, on the third attempt, appellant said that he had not spoken with his lawyer since the last time, and again said that he would not be participating in an interview.
As a result, Dr. Harris relied on the materials provided him in preparing his report, including a record of appellant's offenses, clinical certifications, ADTC progress notes, treatment summaries and evaluations, and trial transcript materials. The doctor confirmed that these materials were of the type normally relied upon by persons in his profession when making these types of assessments. He further testified that he reviewed the materials to "see how other clinicians have arrived at their diagnosis, and how they supported their diagnosis," but that he ultimately formulated his own opinion and diagnoses.
Dr. Harris described the facts of appellant's predicate offense. He testified that in 2002, appellant's ten-year-old niece reported that appellant would walk into her room at night, and would start groping her and touching her genital area. As a result of his touching her, she started bleeding.
The doctor also discussed charges that were dismissed in 2007. In that case, appellant's then-girlfriend's daughter reported that he had repeatedly had vaginal intercourse with her between 1998 and 2001. Prior to that offense, appellant was convicted for his 1986 sexual assaults of two sisters, ages eight and six. The eight-year-old reported that on several occasions appellant would sneak into her room, where he then forced her to perform fellatio and engaged in intercourse with her. The six-year-old also reported that appellant had come into her room and touched her private parts, and that he digitally penetrated her. The girls were subsequently examined at a hospital, where reports confirmed that the two had been vaginally penetrated. For that offense, appellant was sentenced to fifteen years imprisonment.
Based on appellant's history, Dr. Harris concluded that,
the sanction of being arrested, being convicted, and losing one's liberty was not sufficient for [appellant] not to act on his arousal to children. . . . in spite of the severe results of his behavior in the . . . 1980[s, appellant] goes out, and continuous [sic] to act on that arousal in spite of the risk that he . . . engaged in[.]
Dr. Harris also provided details about appellant's personal history, stating that appellant described his parents as "loving and caring." Appellant said he had had some difficulty in school and left in the tenth grade. However, he later completed his GED. He had worked a variety of jobs in the past, and had sold drugs. He was also admitted to a six-month drug treatment program from 1995 to 1996. According to the doctor, "[w]hat was a little unusual was that at ADTC [appellant] denied marriage or children, and prior records indicated that he had three children from two women, neither of which he was married to." His marital history was therefore unclear.
As to his experience at ADTC, appellant was compliant, and there was no indication of his having behavioral issues at ADTC. He participated in treatment, and engaged in groups and in group discussions. However, he refused to discuss his own sex offending behavior. He said that any discussion of his offenses would affect his appeals, and throughout his time at ADTC, he maintained that appeals were pending. However, as Dr. Harris testified, appellant's appeal of his last offense was decided in 2007; therefore, his excuses were "without substance." The doctor also found appellant's excuses "disturbing," because it
demonstrates the lengths he's going to go to protect his deviant arousal, that he is willing not to engage in treatment as a way to hold on to that deviant arousal in spite of what it's done to him, and in spite of the . . . further risk he puts himself in for this . . . right here. He could have engaged in treatment. . . . ADTC is replete with issues of what one is at risk for when one completes treatment, and he . . . elected to leave his deviant arousal alone, which I think speaks to the strength, and . . . his desire to protect that arousal pattern.
The doctor also 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), Dr. Harris rated appellant a four, a moderate to high risk, but opined that appellant posed a higher risk than the test indicated, based on his pedophilic arousal, which is not assessed by the test. He also indicated an increased risk based on appellant's offending at age forty-six. As Dr. Harris reasoned, because being older usually mitigates the risk of reoffending, appellant's offending at forty-six indicates "his inability to modulate his own drives." The doctor further noted that appellant continued to deny his sex offending behavior, which did not necessarily increase his risk of re-offending, but also prevented him from mitigating his risk.
Based on his assessment, Dr. Harris diagnosed appellant with pedophilia, girls, not exclusive, meaning an attraction to girls under the age of thirteen. The doctor also diagnosed appellant with poly-substance dependence, based on his self-report that he as in a drug treatment program for six months. That condition was in remission as appellant was in an institutional setting.
He diagnosed appellant with antisocial personality disorder based on "his lack of . . . honoring societal rules and norms, evidenced by his sexual offending, as well as his non-sexual offending, and ultimately as another example of that is . . . his misrepresenting his appeals." Notably, he did not diagnose appellant with conduct disorder, a precursor condition, which requires evidence of antisocial behavior in juvenile years. According to Dr. Harris, this was not possible, as there was no record of appellant's behavior prior to age eighteen, other than his leaving school. However, the doctor felt his antisocial diagnosis was appropriate because "the anti-social behavior is so persistent in [appellant's] adult life that it . . . captures who [appellant] is[.]"
Dr. Harris testified that antisocial behaviors have been shown to increase the risk of reoffending when combined with pedophilia. Furthermore, appellant's poly-substance abuse could also be a contributing factor, as it would lower his inhibitions and cause him to act impulsively. He said that these conditions do not spontaneously remit, but that with treatment, appellant could "gain a set of skills, which would reduce the risk to sexually re-offend." However, according to Dr. Harris, appellant was not addressing his problems in treatment.
Dr. Stanzione testified about her opinions and conclusions with a reasonable degree of medical certainty. Prior to the hearing, she attempted to interview appellant on two occasions. She informed appellant that she would be writing a report based on her assessment. However, appellant refused to be interviewed both times, claiming he had not spoken to his attorney. Therefore, Dr. Stanzione prepared her report based on the materials provided to her, including his record of offenses and pre-sentence reports, psychological reports, and treatment notes. She said that these materials were of the type normally relied upon by persons in her profession when doing these types of assessments. She also formulated her own diagnoses.
The doctor testified about what she found most significant in appellant's sex-offending history. Specifically, she noted that appellant had five different victims. She noted that he committed the second offense while out on parole from the first offense, and was therefore under Megan's Law supervision at the time. "So, what that tells me is that his need to service his deviant arousal is stronger than the consequences." As a less significant factor, she noted that he was suspected of committing a sexual offense against a homeless woman in 1984. The doctor said this might indicate "a wider range of deviant arousal," because appellant may have chosen to assault an older individual.
She testified that appellant did not participate in risk assessment tests at STU, as he indicated to his psychiatrist that he was unable to reach his lawyer beforehand. Dr. Stanzione also scored him a four on the Static-99, but said he posed an even greater risk because he committed another sexual offense while under supervision. Furthermore, while he was charged in 2002 for the sexual assault of his niece, it took nearly eleven months to apprehend him. Then, subsequent to his arrest, appellant was released on bail. He was later arrested in Texas in 2003, and pled guilty to bail jumping. Therefore, as Dr. Stanzione reasoned, appellant is difficult to apprehend and likely difficult to supervise.
Dr. Stanzione testified that appellant participated in treatment, had addressed some personal issues, and gave others feedback. However, he also told his therapist that he was working to get one of his convictions overturned. When asked if she considered whether appellant was innocent of these crimes, she said that the probability was low. As she reasoned, "[W]hen you have so much evidence, and when you have multiple jury trials[,] you have to wonder what he's doing that he's bringing himself to the attention of the authorities over at these times."
The doctor further testified that she did not know if the electronic monitoring devices available today were available to appellant back in 2002. She said that the Static-99 was not a predictor of what appellant would do, but of what people who scored within the same range would typically do. She also said that his risk of reoffending would decrease with age. Moreover, his lack of meaningful participation in treatment did not necessarily increase his risk of reoffending. However, without treatment, appellant would not be able to develop relapse prevention strategies.
Similar to Dr. Harris, she diagnosed appellant with pedophilia, substance abuse with alcohol and cocaine, and personality disorder with antisocial features. Dr. Stanzione opined that these conditions affected appellant emotionally, cognitively, and volitionally, and put him at high risk to reoffend. She said that these conditions did not spontaneously remit.
After all testimony was presented, appellant's counsel argued that the State had failed to prove that appellant was a sexually violent predator within the meaning of SVPA. In support, counsel stressed that it was the State's burden to prove that appellant was highly likely to commit a sexually violent offense, pursuant to In re Commitment of W.Z., 173 N.J. 109 (2002). Counsel also noted that appellant had committed no institutional infractions while at ADTC, which undermined the doctors' diagnoses of antisocial personality disorder. He argued that the State had not proven that appellant posed a present risk of reoffending. Finally, he argued that the State's experts had had to "make an adjustment" to their Static-99 scores in order to characterize appellant as "highly likely" to offend. He asked the court to dismiss the petition, or to order that appellant be conditionally discharged.
After reviewing the evidence and considering all testimony, the court found clear and convincing evidence that appellant had been convicted of a series of violent offenses against children; and that he suffers from a mental abnormality that makes him "highly likely to engage in further acts of sexual violence if not confined . . . to a secured facility for control, care and treatment." In support of its decision, the court noted that the experts' testimony was uncontroverted. While some of the materials relied upon contained hearsay, the experts had indicated that they were of the type normally relied on by persons in their professions. The court further noted that because appellant refused to be interviewed, he could not then argue that no one should be able to formulate a diagnosis based on the documents.
As to appellant's refusal to discuss his past offenses, the court found the following:
It is really not unreasonable, or is not unusual for a person who has been convicted of one offense to indicate his innocence of that offense, and to rely upon the appellate process to pursue that innocence. Obviously one has a right to file whatever appeals they would need [to] file.
This particular case, [appellant] continued to rely upon the fact that his case was under appeal after 2007 when his appeal had, in fact, been decided. It was remanded to Judge Pullen to reconsider his sentence that she imposed, but all the
substantive convictions by the jury were upheld.
The court notes that no other appeal may be pending.
If we were to assume that everyone who gave a statement in this case, that is little children between the ages of eight and [thirteen] were all lying, this would be an easy case. The evidence which we've heard is . . . overwhelming that these crimes were committed.
The court credited Dr. Harris' testimony that appellant "was so embedded with his pedophilic deviant personality that he would undergo everything he has undergone without [being] willing . . . to talk about it, or deal with it, or to help resolve it in any manner." However, it noted that appellant's non-participation in treatment neither increased, nor helped decrease, his risk of reoffending. The court also credited Dr. Stanzione's testimony that appellant's repeated offenses, while still under court supervision, indicated he was unable to control his "perverse interests."
On appeal, appellant contends that the State failed to produce clear and convincing evidence that he should be committed under SVPA. In support, appellant argues that there is insufficient evidence to support the doctors' diagnoses of pedophilia and antisocial personality disorder. He says that Dr. Stanzione should not have relied on unproven charges, the alleged assault of a homeless woman, to support her diagnoses. He also notes that neither doctor was able to diagnose conduct disorder, a precursor to antisocial personality disorder, because there was no record of appellant's conduct as a juvenile. Finally, appellant points out that he had previously been evaluated after his first offense in 1988, and was found to be primarily "antisocial and exploitative." Therefore, "[i]n the absence of a clear finding of repetitive, compulsive sexual pathology," he was deemed ineligible for sentencing under the New Jersey Sex Offender Act in 1988.
Pursuant to the SVPA, the State may petition for the involuntary commitment of an offender at the end of his sentence. N.J.S.A. 30.4-27.27. To succeed, the State must present 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 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, -27.32. A "mental abnormality" is one "that effects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A likelihood to reoffend "is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior." In re Commitment of W.Z., 173 N.J. 109, 132 (2002).
"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)). We defer to the trial court's findings, in light of its opportunity to hear witness testimony firsthand and to develop a "feel" of the case, which we cannot enjoy. Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We also defer to the committing judges in light of their "expertise" in the subject. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We therefore uphold the judge's findings that are supported by "sufficient credible evidence in the record." Ibid. (quoting Johnson, supra, 42 N.J. at 162) (internal quotations omitted). We reverse only where "the record reveals a clear mistake." R.F., supra, 217 N.J. at 175.
In this case, we find no "clear mistake" in Judge Pursel's findings or conclusions. We reject appellant's claim that there was insufficient evidence to support the doctors' diagnoses of pedophilia and antisocial personality disorder. Dr. Stanzione gave less weight to appellant's unproven sexual assault charge in 1984 than she did to his proven ones. She noted that it was "unclear" whether he in fact assaulted the homeless woman, and referred to him as a "possible suspect." In addition, despite not diagnosing "conduct disorder," the doctors were able to diagnose antisocial personality disorder in light of his persistent antisocial behavior throughout his adult life.
Appellant mentions that the doctors relied on hearsay evidence in making their diagnoses. However, both affirmed that the documents they reviewed were of a type normally relied upon by persons in their profession when making these assessments. N.J.R.E. 703. We have previously held that experts may rely on information such as 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. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App. Div. 2005).
Finally, appellant rightly states that he was deemed ineligible for sex offender sentencing after his evaluation in 1988. However, he fails to explain that his diagnosis at that time was in light of his having "no prior convictions and no prior arrests for sexual offenses." Moreover, the report provided that,
[a]lthough it is possible that the present offenses represent a deviant sexual arousal pattern, there was insufficient psychological evidence to be able to
conclude this firmly at the present time. [Appellant's] staunch denial makes it difficult to elicit the dynamics that formed the basis for the present offenses. His admission of involvement in the selling of illegal drugs does, however, suggest that [appellant] has a value system that embraces illegal activity as well as the exploitation of others. It is, therefore, possible that the present offenses developed primarily as a result of these antisocial and exploitative elements in [appellant's] personality.
In the absence of a clear finding of repetitive, compulsive sexual pathology, [appellant] is not eligible for sentencing under the purview of the New Jersey Sex Offender Act.
Since then, appellant has not changed his tune. He continues to deny his offenses, and relies on the excuse that they are still under appeal. What has changed, however, is that we can now look to a more extensive history of appellant's sexual offenses to support the doctors' diagnoses of pedophilia and antisocial personality disorder. Appellant was undeterred after serving time for his first sexual assault conviction, and went on to commit more offenses. He has proven difficult to supervise, as evidenced by his apprehension and subsequent bail jumping following his 2002 offense. Moreover, he committed his last sexual assault when he was forty-six, an age at which his deviant arousal symptoms should have somewhat abated.
We are satisfied that we have no reason to disturb the court's judgment as Judge Pursel's findings and conclusions were supported by sufficient credible evidence in the record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION