IN THE MATTER CIVIL COMMITMENT OF G.S.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2371-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.S.S.

_____________________________________________________________

 

Argued December 20, 2005 - Decided

Before Judges Coburn, Collester & Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, SVP-329-03.

John Douard, Assistant Deputy Public Defender,

argued the cause for appellant G.S.S.

(Yvonne Smith Segars, Public Defender, attorney;

Mr. Douard, of counsel and on the brief).

Jung W. Kim, Deputy Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Kim and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

An order of December 22, 2003, committed G.S.S. to the Special Treatment Unit under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. The judgment was entered after a bench trial before Judge Perretti. G.S.S. appeals based on the following arguments:

POINT I

THE TRIAL COURT ERRED IN ADMITTING HEARSAY MATERIALS INTO EVIDENCE OVER THE OBJECTION OF G.S.S.

A. Hearsay was improperly admitted over Respondent's objection

B. Reports containing complex diagnoses and conclusions by non-testifying experts were improperly admitted, contrary to N.J.R.E. 808

POINT II

G.S.S. HAS BOTH A FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A JURY TRIAL IN A SEXUALLY VIOLENT PREDATOR HEARING TO PROTECT AGAINST IMPROPER INFRINGEMENT OF PERSONAL LIBERTY

A. The right to a jury trial is protected by the New Jersey Constitution and New Jersey case law

1. The right of trial by jury existed at common law and was preserved by the New Jersey Constitution of 1776

B. G.S.S.'s RIGHT TO A JURY TRIAL IS WELL-ENTRENCHED IN SVP STATUTES

1. Other states' SVP statutes assert a right to jury trial

2. Recognition of the right to a jury trial for SVP cases in New Jersey is consistent with New Jersey's past reliance on the Kansas SVPA

C. Depriving G.S.S. of a jury trial before confining him at the STU under the SVPA violated his rights under the Equal Protection guarantees of the United States and New Jersey Constitutions

POINT THREE

THE ATTORNEY GENERAL FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT MEETS THE CRITERIA FOR COMMITMENT UNDER THE SVPA

After carefully considering the record and briefs, we are satisfied that all of G.S.S.'s arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Perretti in her thorough and well-reasoned oral opinion delivered on December 22, 2003. Nonetheless, we add the following comments.

G.S.S., who is now 49, pled guilty to second degree attempted sexual assault and was sentenced on January 19, 1990, to five years at the Adult Diagnostic and Treatment Center ("ADTC"), where he stayed until 1993. Before that sentence was imposed, G.S.S. admitted to a clinical psychologist that he had "direct sexual contact" with three adolescent males. He also admitted engaging in sexual activity with a fifteen year old boy. The psychologist concluded that G.S.S. had a "repetitive, compulsive sexual preoccupation with young adolescent males." In late 1995, G.S.S. began picking up several special education students, one age fourteen and the other two fifteen, and performing fellatio on them on numerous occasions. As a result of that activity, G.S.S. was arrested and eventually pled guilty to three counts of second degree sexual assault and other charges. He received three concurrent ten year terms for the sexual assault charges and lesser concurrent terms for the related offenses. Before his scheduled release, the commitment proceeding was instituted. The bench trial began after Judge Perretti denied G.S.S.'s application for a jury trial.

The Attorney General presented two witnesses: Dr. Zeiguer, a psychiatrist, and Dr. Carlson, a psychologist. Based on his reviewing of the customary background materials and his lengthy interview of G.S.S., Dr. Zeiquer opined that G.S.S. "suffers from paraphilia NOS, which manifests in engaging in illegal sex with post-pubescent boys under circumstances in which he knew he could be detected." He noted as important that while in the ADTC, G.S.S. continued to correspond inappropriately with his victims. He characterized G.S.S.'s risk to recommit sexual offenses as "very high" because of his failure to respond to treatment at the ADTC. Based primarily on a variety of tests and his interview, Dr. Carlson concluded that G.S.S. suffers from paraphilia NOS and a personality disorder, and that his release would pose a significant threat to the community.

Dr. Timothy P. Foley, a psychologist, testified for G.S.S. Dr. Foley, relying on the same information as did the State's experts, plus some tests he gave G.S.S., reached a diagnosis of avoidant personality disorder, a condition that interferes with the ability to have appropriate sexual relationships with adults. This, he said, predisposes G.S.S. to become involved with adolescent boys. But he further concluded that there was only a medium risk of that occurring if G.S.S. received appropriate community supervision and aftercare treatment.

Judge Perretti was "clearly convinced" that G.S.S. suffered from "abnormal mental conditions and personality disorders that adversely impacted his volitional, cognitive, and emotional capacities in such a way as to predispose him to commit sexually violent acts," and she was further clearly convinced that if not confined, G.S.S. was highly likely to recidivate. Given our limited scope of review, In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001), and the nature of the evidence submitted, we cannot say that Judge Perretti erred in committing G.S.S.

Judge Perretti's rulings on the admission of evidence were in accord with the case law. See, for example, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div. 2005); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd., 177 N.J. 229 (2003).

 
There is no right to a jury trial in these proceedings. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46 (App. Div. 2004).

Affirmed.

(continued)

(continued)

6

A-2371-03T2

RECORD IMPOUNDED

December 30, 2005