I/M/O CIVIL COMMITMENT OF A IN THE MATTER CIVIL COMMITMENT OF A.J.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1573-03T21573-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF A.J.H. SVP-326-03

__________________________________

 

Submitted September 12, 2005 - Decided

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-326-03.

Yvonne Smith Segars, Public Defender, attorney for appellant A.J.H. (Alan I. Smith, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood, Deputy Attorney General, and Amy E. Duff, Deputy Attorney General, the brief).

PER CURIAM.

A.J.H. appeals from an order of judgment entered on September 23, 2003, finding that he is a sexually violent predator in need of involuntary civil commitment and ordering that he be committed to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

On July 15, 1988, A.J.H. sexually assaulted an eight-year old female by pulling the child's pants down and rubbing his penis against her vagina. On October 5, 1990, a jury found A.J.H. guilty of second-degree sexual assault of the young girl and of endangering the welfare of the child, a crime of the fourth-degree. On December 5, 1990, A.J.H. underwent a court ordered psychological evaluation by Dr. Kenneth L. McNiel, a psychologist, at the Adult Diagnostic and Treatment Center (ADTC) to determine whether A.J.H. was eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. Although McNiel found that A.J.H.'s history demonstrated a "repetitive pattern of sexual offenses," he concluded that the then-available data did not support a finding of "compulsive sexual deviance." On February 7, 1991, A.J.H. was sentenced to incarceration for an aggregate term of nine years with three years parole ineligibility.

On May 6, 1989, A.J.H. raped and robbed a twenty-six year old female, after first forcing her to perform oral sex on him. A.J.H. was charged with first-degree robbery; second-degree aggravated sexual assault (two counts); third-degree criminal restraint; second-degree aggravated assault; third-degree terroristic threats; fourth-degree endangering the welfare of a child; third-degree possession of a weapon; and, third-degree possession of a weapon for an unlawful purpose. After a jury trial, A.J.H. was found guilty on the charges of robbery, both counts of aggravated sexual assault, and aggravated assault. He was found not guilty of the charges of endangering the welfare of a child, possession of a weapon, and possession of a weapon for an unlawful purpose. The remaining charges were either dismissed or merged.

On August 8, 1991, A.J.H. underwent a second court ordered evaluation at the ADTC to determine his eligibility for sentencing under the Sex Offender Act. The examination was conducted by Dr. Mark Frank, a psychologist. Although Frank concluded that A.J.H. had a history of "repetitive inappropriate sexual behavior," he found that A.J.H. was not eligible for sentencing under the Sex Offender Act because there was "insufficient psychological evidence to conclude the presence of sexual compulsion." Frank noted that A.J.H.'s deviant sexual behavior was related to his underlying psychotic symptoms. Frank urged that "[r]egardless of the disposition of this case, continued psychiatric treatment and medication monitoring is clearly indicated."

On October 21, 1991, A.J.H. was sentenced to an aggregate term of twenty years with ten years of parole ineligibility. At the time of sentencing, the trial judge stated that A.J.H. had "forced his way into the door by use of a blade and proceeded to rob, threaten and commit sexual assault, . . . [and] humiliat[ed] the victim . . . in the presence of her children."

On or about May 14, 2003, eight days before A.J.H. was scheduled to be released from prison, the State filed a petition seeking an involuntary civil commitment of A.J.H. pursuant to the SVPA. The petition was supported by clinical certificates from two psychiatrists, Dr. Neal Brandoff and Dr. Herbert Kaldany, both of whom concluded that A.J.H. suffers from a diagnosed mental condition that results in A.J.H. having serious difficulty controlling his behavior, such that it is likely that he will not be able to control his sexual behavior and will re-offend.

At his initial hearing the court admitted into evidence, over A.J.H.'s objection, copies of his pre-sentence and ADTC evaluation reports. The State presented testimony in support of its application from Dr. Michael R. McAllister, a psychiatrist, and Dr. Natalie Barone, a psychologist. Both experts had reviewed the records maintained at the STU, including the pre-sentence reports and supporting clinical certificates of Drs. Brandoff and Kaldany, and had personally evaluated A.J.H.

Dr. McAllister diagnosed A.J.H. with paraphilia NOS; bipolar disorder in remission (on medication); impulse control disorder NOS; and antisocial personality disorder. McAllister ruled out pedophilia and sexual sadism. It was McAllister's opinion that individuals with a combined diagnosis of paraphilia and antisocial personality disorder are at a higher risk to re-offend than an individual who only has one of those diagnoses. McAllister opined that A.J.H.'s risk of sexually re-offending is "extraordinarily high" in light of his difficulty controlling sexual behavior both in the community and in highly structured settings.

Dr. Barone diagnosed A.J.H. with paraphilia NOS; antisocial personality disorder, with paranoid features; history of bipolar I disorder; and a provisional, but ruled out, diagnosis of sexual sadism. Barone found that A.J.H. has serious difficulty controlling his sexual offending behavior and, in her opinion, is "highly likely to engage in future acts of deviant sexual behavior as defined in the SVP[A] statute if released into the community at this time."

At the conclusion of the hearing, Judge Perretti found that the State had proven the necessary elements under the SVPA by clear and convincing evidence and directed that A.J.H. be committed to the STU, with a review to occur in one year.

On appeal, A.J.H. argues:

POINT I.

THE STATE ABUSED ITS PARENS PATRIAE POWERS AND VIOLATED THE APPELLANT'S RIGHTS UNDER THE FIFTH AMENDMENT BY CONSIDERING, AS EVIDENCE IN SUPPORT OF ITS PETITION FOR CIVIL COMMITMENT, CRIMINAL CHARGES ON WHICH THE APPELLANT WAS FOUND NOT GUILTY BY A JURY.

POINT II.

THE STATE FAILED TO PROVE THE ELEMENTS FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT BY CLEAR AND CONVINCING EVIDENCE.

(A) THE STATE FAILED TO ESTABLISH THAT

THE APPELLANT'S MENTAL AND PERSONALITY DISORDERS AFFECTED HIS ABILITY TO CONTROL HIS SEXUALLY HARMFUL CONDUCT.

(B) THE STATE FAILED TO ESTABLISH THAT THE APPELLANT IS LIKELY TO ENGAGE IN FUTURE ACTS OF SEXUAL VIOLENCE.

The State's authority "to civilly commit citizens is an exercise of its police power to protect the citizenry and its parens patriae authority to act on behalf of those unable to act in their own best interest." In re Commitment of P.C., 349 N.J. Super. 569, 579 (App. Div. 2002). 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. In order "[t]o be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). "[T]he State must prove that threat 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." Ibid.

A.J.H. argues that the State abused its parens patriae powers and violated his Fifth Amendment rights when Drs. McAllister and Barone testified that they had considered factual allegations in one of the pre-sentence reports involving criminal charges on which A.J.H. had been found not guilty by a jury. Although A.J.H. does not reference the specific criminal charges in question, we conclude that A.J.H. is referring to the experts' consideration that he used a razor blade during the sexual assault of the second victim and that he raped her in the presence of the victim's children, as he had been found not guilty in his second trial of the charges of endangering the welfare of a child, possession of a weapon, and possession of a weapon for an unlawful use.

This court has previously upheld an expert's use of background information concerning offenses contained in pre-sentence investigation reports in reaching his or her opinion. See In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004) (citing In re Civil Commitment of J.M.H., 367 N.J. Super. 599, 611-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004)); In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004). We have, however, stated that such information "should not be accepted uncritically," especially if the information is contested by the defendant at trial, because an expert "may not reasonably rely on inaccurate information in forming opinions." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490-91 (App. Div. 2005).

We are satisfied from a review of the record that the experts' reference to unproven criminal charges does not constitute reversible error. The information was not considered by the experts as a premise in formulating their ultimate opinions, but rather was only considered in reaching their "provisional diagnosis" of sexual sadism. Also, the factors complained of were only two of many factors surrounding the rape of the second victim which led to the provisional diagnosis. Evidence at trial disclosed that A.J.H. had forced his victim to fellate him before raping her; he blindfolded the victim; and he made terroristic threats, both during and after the attacks. The experts found that A.J.H. had used more force than necessary in the rape in reaching their provisional diagnosis. As such, the reference by the experts to his use of a weapon and commission of the rape in the presence of the victim's children was harmless.

A.J.H. contends that the State failed to establish by clear and convincing evidence that the committee's mental and personality disorders affected his ability to control his sexually harmful conduct and that he is likely to engage in future acts of sexual violence under SVPA. A.J.H. argues that the trial judge erred by not considering the opinions of the two psychologists contained in the ADTC diagnostic evaluation reports of 1990 and 1991, wherein the psychologists had concluded that A.J.H. was not eligible for sentencing under the Sex Offender Act. A.J.H. also argues that McAllister and Barone had improperly relied upon the clinical certificates of Drs. Brandoff and Kaldany, neither of whom testified in the matter. We disagree.

A trial court's failure to consider a psychologist's conclusion in an ADTC evaluation report that the individual's conduct was not "characterized by a pattern of repetitive, compulsive behavior," N.J.S.A. 2C:47-3a, does not constitute error. See J.S.W., supra, 371 N.J. Super. at 222-25 (holding that the SPVA and the Sex Offender Act "employ[] different definitions, and [have] different criteria for their application"). Although a trial court is not required to accept a conclusion of an expert contained in an ADTC evaluation report, the court and experts testifying at a commitment hearing under the SVPA may consider the substance of the ADTC evaluation report. Id. at 224.

Nor was it reversible error for the court to allow Drs. McAllister and Barone to refer to clinical certificates of Drs. Brandoff and Kaldany in reaching their opinions in the matter. While the State, as a matter of fundamental fairness, "should be required to produce at the initial SVPA commitment hearing the physicians who signed the clinical certificates supporting the commitment petition, if they are available and if any expert testifying in court intends to rely on the opinions contained in those certificates," E.S.T., supra, 371 N.J. Super. at 575, we are satisfied from a review of the record that neither McAllister nor Barone "rel[ied] to any significant degree . . . on the clinical certificates[,] . . . but offered their own opinions based on a detailed examination of [A.J.H.'s] criminal history and prior mental health evaluations, as well as their brief interviews with him." A.E.F., supra, 377 N.J. Super. at 485. As such, we conclude that the reference to the clinical certificates in this case was harmless. Id. at 485-89.

Our review of a trial court's decision in a commitment hearing is a narrow one. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) certif. denied, 177 N.J. 490 (2003). We accord the "utmost deference" to the trial court's determinations, and can only modify the same "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)). We find that the record supports the commitment of A.J.H. under the SVPA. Accordingly, the order is affirmed.

 
Affirmed.

The Notice of Appeal identifies the appellant/committee as "A.Z.H." Both the appellant/committee's and the State's brief, however, refer to the appellant/committee as "A.J.H." Consistent with the briefs, the court shall refer to the appellant/committee as "A.J.H."

Paraphilia is defined as an "aberrant sexual activity; sexual deviation; expression of the sexual instinct in practices which are socially prohibited or unacceptable . . . ." Dorland's Illustrated Medical Dictionary, 1135 (25th Ed. 1974).

"Not otherwise specified."

(continued)

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A-1573-03T2

RECORD IMPOUNDED

September 29, 2005