IN THE MATTER CIVIL COMMITMENT OF C.A.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1034-02T21034-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.A.C. (SVP 250-02)

___________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-250-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Heather Lynn Anderson and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

C.A.C. appeals from the September 12, 2002 final order finding him to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committing him to the Special Treatment Unit (STU) for one year with a one year review hearing scheduled September 4, 2003. We affirm.

An involuntary civil commitment can follow service of a sentence or other criminal disposition when the offender "suffers from a mental abnormality or personality disorder that makes the person 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 131-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

At the September 12, 2002 hearing, Judge Perretti found defendant to be a SVP within the meaning of the SVPA by clear and convincing evidence after hearing testimony from Dr. Charles Gnassi, the State's psychiatrist, Dr. Natalie Barone, the State's psychologist and Dr. Robert Latimer, defendant's psychiatrist. The judge made her findings based on the testimony of all three experts.

C.A.C. presents the following arguments for our consideration:

POINT I

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. GNASSI AND BARONE BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below).

POINT II

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL. (Not Raised Below).

POINT III

THE COURT ERRED IN BASING ITS DECISION IN PART UPON ALLEGATIONS RELATED TO C.A.C.'S CRIMINAL CONDUCT THAT WERE NEVER ADMITTED BY C.A.C. (Not Raised Below).

POINT IV

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.A.C. WAS SUBJECT TO SVP COMMITMENT.

C.A.C.'s underlying predicate offenses include a 1989 conviction based upon his plea of guilty to third-degree sexual assault in which he admitted to touching the breasts of his step-daughter when she was under the age of thirteen. He was sentenced to five years imprisonment to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. Prior to sentencing, he was evaluated by Dr. Jeffrey B. Allen, an ADTC psychologist, on March 8, 1989. In his report, Dr. Allen stated that C.A.C. admitted to sexually violating his step-daughter from the time she was six years old until the time she was seventeen. Those sexual assaults included, from the age of ten to seventeen, vaginal, anal and oral sex almost on a daily basis, as well as other acts of violence such as hitting his step-daughter with belts, slapping her and kicking her before and after the rapes, which he committed both while intoxicated and sober and beating his step-daughter and her mother for no reason. The Allen report determined C.A.C.'s molestation of his step-daughter was performed compulsively and repetitively. Treatment notes at the ADTC revealed that C.A.C. maintained a "hostile, angry and aggressive attitude towards the therapeutic process and the institution in general."

After his release on parole on the third-degree sexual assault offense, on November 9, 1999 C.A.C. grabbed the buttocks of an eleven-year-old girl after approaching her and saying that he loved her and wanted to kiss her. This act took place while he was intoxicated. On April 16, 2001, C.A.C. pled guilty to endangering the welfare of a child in the third-degree and admitted that he touched the girl in a way that would make her feel she was being assaulted in a sexual manner. Prior to sentencing, C.A.C. was evaluated by Dr. Kenneth L. McNiel, an ADTC psychologist. C.A.C. admitted to Dr. McNiel prior acts of violence of a non-sexual nature involving incidents in which his wife got mad at him and called the police. Dr. McNeill determined, based on testing and his interview with C.A.C., that C.A.C. showed a history of "poor impulse control, assaultive behaviors and substance abuse." Defendant was sentenced to three years to be served at the ADTC, one and one-half of which must be served before he is eligible for parole. During his treatment at the ADTC, C.A.C. failed to participate in therapy groups even after his placement in a Spanish-speaking therapy group and demonstrated hostility and frustration when confronted about his sex offenses.

On January 8, 2002, in preparation for his release from the ADTC, C.A.C. was evaluated by a panel of ADTC therapists who determined, based upon his refusal to engage in treatment, that he presented as an "untreated sex offender in terms of his denial, minimizations and unwillingness to answer questions directly or assume any responsibility for his behavior." C.A.C. did not show any empathy toward his victims, and refused to explore issues pertaining to his "deviant sexual arousal, cognitive distortions, anger and substance abuse." The therapists concluded that C.A.C. was at high risk to re-offend because he failed to learn even basic relapse prevention concepts and effective coping skills. Although he would agree to attend group therapy in the community, he demonstrated no motivation for treatment. He was thus recommended for a psychiatric evaluation to determine whether civil commitment proceedings should be pursued.

C.A.C. was first evaluated on January 21, 2002 by Dr. Vivian Shnaidman, a psychiatrist, to determine whether civil commitment should be pursued. Because C.A.C. declined to participate and be interviewed by Dr. Shnaidman on January 21, 2002 and at a subsequent evaluation on January 24, 2002, Dr. Shnaidman based her opinion upon a review of C.A.C.'s classification folder and medical records, as well as prior test results, noting that he had an elevated risk to sexually re-offend because of his marginal participation in treatment and refusal to explain his sex offending behavior. Dr. Howard Gilman, a psychiatrist, also attempted to evaluate C.A.C. on June 3, 2002 but C.A.C. declined to answer questions posed to him. Dr. Gilman likewise based his findings of a likelihood to re-offend on a review of C.A.C.'s classification folder, medical records, and prior test results. Dr. Gilman noted, in arriving at his opinion, C.A.C.'s disruptiveness in group therapy and lack of benefit from treatment.

At the commitment hearing, Dr. Gnassi testified to C.A.C.'s unwillingness to be interviewed by him. Dr. Gnassi based his diagnosis and opinion on the reports and records he reviewed, including termination reports from the ADTC presentence evaluations and therapy notes from the ADTC. Dr. Gnassi diagnosed C.A.C. as suffering from pedophilia (sexually attracted to females), substance abuse (alcohol dependency), and personality disorder. The pedophilia diagnosis was based on C.A.C.'s history of sexual involvement with his step-daughter over many years and the many ways in which he became sexually involved with her, and the fact that he raped his step-daughter while intoxicated and when sober. The diagnosis of substance abuse was based on C.A.C.'s self-reported long history of alcohol abuse. The diagnosis of personality disorder was based on C.A.C.'s refusal to communicate based on an assertion of his inability to speak English, even when placed in a Spanish-speaking therapy group, which prevented him from taking responsibility for his offenses and prevented him from gaining any insight into his compulsive sexual attraction to children. Dr. Gnassi opined that his pedophilia places C.A.C. at high risk to engage in acts of sexual violence in the future if not further confined for treatment.

Dr. Barone made a similar diagnosis but also was forced to rely for her diagnosis and opinion on various reports and records contained in C.A.C.'s file because of C.A.C.'s declining to be interviewed. Dr. Barone also diagnosed C.A.C. with pedophilia. Her diagnosis was based on C.A.C.'s recurrent and intense sexual urges and behaviors toward his step-daughter, the intensity of the sexual behavior, the frequency of occurrences, and the substance abuse overlay based on his own admissions. Dr. Barone's diagnosis of personality disorder NOS was based on C.A.C.'s failure to understand even basic relapse prevention concepts, his failure to develop any effective coping techniques, and his lack of desire to explore his psychosexual arousal pattern or flaws in his personality.

Dr. Latimer testified that C.A.C. suffers from brain damage related to alcohol usage and suffers from poor memory, personality and habit deterioration and poor impulse control. Dr. Lattimer did not believe C.A.C. could be diagnosed with pedophilia because he had only two victims. The second victim was as a result of C.A.C.'s intoxication. Dr. Latimer concluded that C.A.C. would only go after children when drinking, that his personality disorder leads him to drink excessively, and that he has a mental abnormality that predisposes him to commit acts of violence. Dr. Lattimer stressed that he should never be by himself or around children.

Judge Perretti based her decision upon the testimony of the three experts who testified. The judge determined that all three experts found it likely that C.A.C., if not confined in a controlled environment, would commit additional sexually violent acts, that his personality disorder is connected to his pedophilia and impacts on his ability to change and his ability to participate in therapy. She concluded that the risk from C.A.C.'s pedophilia cannot be lowered because he refuses to participate in therapy, which was established by the fact that he is on treatment refusal status. The court found by clear and convincing evidence that C.A.C. is "a sexually violent predator suffering from an abnormal mental condition and personality disorder that predisposes him to commit sexually violent acts" and that it is highly likely that he will recidivate.

We are satisfied the statutory criteria were proved by clear and convincing evidence and that the court's findings were based upon substantial credible evidence in the record. C.A.C.'s sexually violent offenses themselves satisfy the first prong of the statutory requirement of conviction of a sexually violent offense. The evidence of mental abnormality or personality disorder, which affects his ability to control his sexually harmful conduct, was proved by his diagnosis of pedophilia, alcohol abuse and personality disorder, which was well supported by his record of offenses, his own admissions and his treatment record at the ADTC during both of his incarcerations. C.A.C.'s own admissions to Dr. Allen, his history of sexually violent behavior, and his avoidance personality that makes it difficult for him to control his behavior, establish his likelihood to engage in violent acts in the future. C.A.C. is unable to control his behavior because of his refusal to participate in treatment to develop effective coping skills as established by the treatment records. C.A.C.'s prior criminal acts are an important indication of future violent tendencies. Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501, 512 (1997). All three experts agreed that C.A.C.'s personality makes it difficult for him to control his behavior and that his alcohol abuse and refusal to participate in treatment increases his risk to sexually re-offend. See In re Commitment of W.Z., 339 N.J. Super. 549, 563 (App. Div. 2001), aff'd as modified, 173 N.J. 109, 128-29 (2002).

C.A.C. argues that the bases for the State's experts' opinions were based on records and reports that constitute hearsay. However, C.A.C. was given an opportunity to be interviewed and tested by Dr. Gnassi and Dr. Barone, but he willfully refused to comply with the statutorily required evaluations necessary for the State to meet the requirement of N.J.S.A. 30:4-27.30 that psychiatric testimony be presented at a commitment hearing before a finding as to the need for commitment can be made. C.A.C. cannot elect to voluntarily defy the requisites of the statute by refusing to submit to an evaluation and then claim that the testimony of the testifying psychiatrist and psychologist is based on records and reports and is not based upon evaluation and testing of him. State v. Logan, 244 N.J. Super. 137, 140-42 (Law Div. 1990), aff'd, 262 N.J. Super. 128 (App. Div.), certif. denied, 133 N.J. 446 (1993). The reports and records include his admissions to Dr. Allen. Additionally, C.A.C.'s record of treatment and therapy at the ADTC are the type of records relied upon by experts in the fields of psychiatry and psychology in arriving at their own independent diagnosis and opinions. See JHM, supra, 367 N.J. Super. at 612; N.J.R.E. 703.

We are satisfied that the judge properly permitted the State's expert witnesses to utilize the record of C.A.C.'s sexual crimes, the presentence evaluations of C.A.C., C.A.C.'s treatment notes at the ADTC, and the ADTC termination reports in arriving at their own independent diagnosis and opinions. In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). In A.X.D. we stated:

In significant aspects, the reports themselves were admissible for their truth under applicable exceptions to the hearsay rule. See, N.J.R.E. 805. The reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth insofar as they factually reported A.X.D.'s statements or refusals to discuss certain issues. A.X.D.'s statements made to the treatment team (including his refusal to discuss certain important issues) were admissible as statements of a party. N.J.R.E. 803(b)(1).

[Id. at 202.]

In A.X.D. we further recognized that the trial judge was entitled to consider A.X.D.'s records in the course of weighing the credibility of the testifying experts. Ibid.

In determining whether sufficient evidence was presented to support the continued commitment of C.A.C., our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

We are satisfied that the State proved by clear and convincing evidence that C.A.C. is a violent sexual predator who suffers from a present mental condition and personality disorder that creates a strong likelihood of future sexually violent behavior. W.Z., supra, 173 N.J. at 127. We are convinced from our review of the entire record that Judge Perretti's findings are amply supported by substantial credible evidence. Accordingly, we affirm C.A.C.'s continued commitment.

 
Affirmed.

(continued)

(continued)

13

A-1034-02T2

RECORD IMPOUNDED

November 14, 2005