IN THE MATTER CIVIL COMMITMENT OF R.Z.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6193-02T26193-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.Z.R. SVP-289-02

__________________________________

 

Submitted November 14, 2005 - Decided

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-289-02.

Yvonne Smith Segars, Public Defender, attorney for appellant R.Z.R. (Elise C. Landry, Assistant Deputy Public Defender, of counsel and 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 Eric R. Foley, Deputy Attorney General, on the brief).

PER CURIAM

R.Z.R. appeals from an order of judgment entered on July 18, 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. R.Z.R. waived his one-year review hearing on April 28, 2004, pending decision on this appeal.

On March 18, 1992, R.Z.R. pled guilty to charges of fourth-degree sexual contact, second-degree sexual assault, and third-degree witness tampering. The charges arose from his sexual encounters with two underage females, between 1986 and 1988, one of whom was his stepdaughter. One victim, S.H., was a sixteen year old friend of R.Z.R.'s stepdaughter, S.W., who R.Z.R. attempted to sexually assault on two separate occasions in 1988. The first incident occurred on June 12, 1988, when R.Z.R. gave S.H. a ride to his home to see S.W. S.W. was not present. While sitting on the couch, R.Z.R. took off his shorts, pulled down S.H.'s pants, got on top of her, attempted sexual intercourse, but did not penetrate. The second incident occurred on August 11, 1988, when he offered S.H. a ride in his motor vehicle to his house. Inside the house, he removed his shorts, and pulled down S.H.'s pants. He got on top of her, and she commenced hitting him, trying to get him to stop. He began rubbing his penis against her vagina until in her words "something made him stop."

Between 1986 and 1988, R.Z.R. committed various sexual acts with S.W., when she was fifteen to eighteen years old. The acts included fondling, sexual intercourse, digital vaginal penetration, fellatio and cunnilingus. On September 22, 1988, while S.W. was wearing a hidden wire for the prosecutor's office, R.Z.R. admitted having sex with S.W. over several years. R.Z.R. was arrested that date, and charged with two counts of fourth-degree criminal sexual contact, two counts of second-degree sexual assault, and other charges, including third-degree witness tampering. On March 18, 1992, R.Z.R. pled guilty to one charge of sexual contact upon S.H.; one count of sexual assault upon S.W.; and witness tampering. Prior to sentencing, R.Z.R. underwent an evaluation at the Adult Diagnostic and Treatment Center (ADTC) and was found by Dr. McNiel to be a compulsive sex offender. R.Z.R. was sentenced to a term of five years to be served at Avenel, pursuant to the Sexual Offender Act, N.J.S.A. 2C:47-1 to -10. At the end of his sentence, he underwent a second evaluation by Dr. Turek, who concluded that R.Z.R. was essentially untreated for his repetitive, compulsive, criminal sexual behavior.

Prior to the date of the predicate offenses, R.Z.R. was convicted of indecent exposure in February 1967. On September 3, 1969, he was charged with rape, assault, intent to commit rape and fornication. On November 26, 1969, he pled guilty to fornication, and was sentenced to a five-month term. In November 1996, R.Z.R. pled guilty to distribution of a controlled dangerous substance (CDS); two counts of possession of CDS with intent to distribute; and two counts of theft by deception. On February 21, 1997, he was sentenced to a term of ten years.

On December 9, 2002, just prior to his release, the State filed its petition seeking his involuntary commitment based upon the 1992 convictions. On December 12, 2002, an order of temporary commitment was entered. On May 15, 2003, R.Z.R. filed a motion to dismiss the petition on the basis that he was not serving a sentence for a sexually violent offense at the time the petition was filed. The motion was denied by Judge Freedman on June 11, 2003.

The initial hearing was held on July 18, 2003, before Judge Perretti. At the hearing, Dr. Pogos H. Voskanian, a psychiatrist, testified on behalf of the State. He diagnosed R.Z.R. with paraphilia NOS, pedophilia, oppressive disorder NOS and anti-social personality disorder. During his testimony, Dr. Voskanian changed his diagnosis of pedophilia to a provisional one leaving it on a "rule-out basis." In describing R.Z.R.'s anti-social personality disorder, Dr. Voskanian stated:

He has this marked tendency to risk, disregard rights of others, exhibits no remorse. [R.Z.R.] in his 50's still displays strong traits of anti-social personality disorder that I do not believe . . . just popped out in his middle ages, even though he provided no history of any wrongdoing in his young age prior to adolescence, but at [the] present time he displays very strong trends.

Concerning treatment, Dr. Voskanian opined: "I do believe we are seeing just the tip of the iceberg and he needs treatment and understanding of all the issues that he has." In talking about his past victims, "There was no indication of remorse . . . . He does not have empathy for the victims." In his report, Dr. Voskanian stated: "[R.Z.R.] had practically not received sex offender specific treatment. He is most likely to benefit from services offered at STU." It is his opinion that R.Z.R. is a sexually violent predator, and that he suffers from a mental abnormality or disorder that makes him "highly likely" to re-offend.

Dr. Robert Carlson, a psychologist, testified on behalf of R.Z.R. He diagnosed R.Z.R. with a depressive disorder NOS, and personality disorder NOS with anti-social, schizoid and dependent traits. Carlson found no evidence of paraphilia or pedophilia. Although Carlson found that R.Z.R. had a score of 6 on the Static-99 instrument, he found that R.Z.R.'s sexual misbehavior was not particularly compelling; i.e., "that [R.Z.R.'s] sexual misbehavior is really a combination of factors that suggest to me that he is not a predatory individual, that he is not a particularly violent individual, and that he is not an individual which appears to be a significant threat to the community. And, therefore, I characterized it as not a very compelling case for civil commitment." Carlson described R.Z.R.'s past sexual acts as "opportunistic" and "manipulative." He described the relationship with R.Z.R.'s stepdaughter as "remind[ing] me of a co-habitation instead of a sexually-violent relationship." Based on actuarial instrument measures, Carlson found "[R.Z.R.] is in the medium to medium-high risk for sexual recidivism." However, overall he described R.Z.R.'s risk for sexual re-offense as "moderate," although if given access to teenage victims, the risk to re-offend would increase.

Also testifying on behalf of R.Z.R. was Dr. Jeffrey C. Singer. He diagnosed R.Z.R. with paraphilia NOS, depressive disorder NOS and personality disorder with anti-social, schizoid and dependent traits. He opined that R.Z.R. does not meet the statutory criteria for commitment under the SVPA. He concluded that R.Z.R. should not be committed because he did not have a high risk to re-offend. "[T]here is the absence of a bonafide, hardened paraphiliac pattern of arousal; that he is approaching 60; and that the nature of his sex offenses [is] not predatory or violent in nature. Now, that is [not] to say that there are [not] violent elements and that there are [not] gross abuses of power in his relationships, but that they don't reach that threshold."

Judge Perretti concluded that R.Z.R. is a sexually violent predator in need of treatment. She reviewed the various pre-sentence reports and the ADTC evaluation reports including R.Z.R.'s admissions concerning his sexual acts and lack of empathy for the victims. She concluded that while R.Z.R. was convicted of only fornication in one of the earlier acts, that by his own admission, it really constituted non-consensual conduct because the victim told him to stop and tried to push him off her. The judge also disregarded portions of Dr. Voskanian's testimony. She rejected his provisional diagnosis of pedophilia and his diagnosis of anti-social personality disorder, although she accepted his diagnosis of personality disorder NOS. She accepted the balance of his opinions concerning R.Z.R. The judge rejected those portions of Carlson's and Singer's opinions where they concluded R.Z.R. has little risk to re-offend. She stated:

With this kind of a history, a compulsive, repetitive sex offender, a person with such a wide range of sexual victims so far as age is concerned from practical strangers to stepdaughter, from age 15 to age 30 or up, lack of sex offender treatment, I can [not] help but conclude that [there] has been clear and convincing evidence that the respondent is a sexually violent predator, that he suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, cognitive and emotional capacities[,] so as to predispose him to sexually-violent acts.

I find that it is highly likely that he will recidivate.

On appeal, R.Z.R. argues: 1) that the court erred in committing him under the SVPA because he was not serving a sentence for a sexually violent offense when committed, and that there is no evidence of recent dangerous behavior or threats; 2) that the court considered as substantive evidence hearsay contained in various treatment notes and pre-sentence reports; and 3) that the State failed to prove, by clear and convincing evidence, that he is subject to civil commitment under the SVPA.

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. The trial court must be satisfied by clear and convincing evidence that such is the case at the time of the hearing. Id. at 132-34.

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)).

R.Z.R. argues that the judge erred by committing him under the SVPA because he was not serving a sentence for a sexually violent offense when committed to the STU, and there was no evidence of recent sexual dangerous behavior. R.Z.R. contends that the primary purpose of the SVPA is to prevent release of persons reaching the end of their sentences for designated sexually violent offenses. R.Z.R. asserts that at the time the State filed the petition for civil commitment, he was only in custody for convictions on drug and theft by deception charges, none of which are enumerated in the SVPA's list of predicate offenses, nor were the charges based upon sexually violent behavior.

We discern nothing in the SVPA to suggest that the legislature intended to limit "the commitment process to inmates about to be released after serving sentences for sexually violent crimes, or even to persons whose sexually violent offenses were committed recently." In re Commitment of P.Z.H., 377 N.J. Super. 458, 465 (App. Div. 2005). "The SVPA authorizes involuntary civil commitment of sexually violent predators." Id. at 463. "Nothing in the statute . . . suggests that the Attorney General may only seek commitment of a person who is about to be released from confinement, or that the person, if confined, must have been confined for committing a predicate offense, or that the person must have recently committed a predicate offense." Id. at 465. "Read together, [the SVPA statutes] authorize the commitment of any person who has committed a sexually violent offense, without regard to when the offense was committed or whether the person is currently incarcerated for that offense." Id. at 463. Accordingly, we reject R.Z.R.'s argument that the judge erred by committing him although he was incarcerated for a non-predicate offense and there is no evidence of recent sexually dangerous behavior.

R.Z.R. next argues that Judge Perretti erred in admitting into evidence over his objection: 1) the pre-sentence report concerning the March 18, 1992, convictions for sexual contact, sexual assault and witness tampering; 2) the transcript of sentencing concerning the convictions for sexual contact, sexual assault and witness tampering; 3) the ADTC report of Dr. McNiel dated August 18, 1992; and 4) the ADTC termination summary report dated June 9, 1995. R.Z.R. contends that the judge erred in accepting testimony of Dr. Voskanian, which was based in part on victims' statements contained within the documents concerning circumstances surrounding criminal convictions for which there was no independent proof presented at the hearing. R.Z.R. further contends that although Judge Perretti indicated that she would only consider the hearsay for the "limited purpose of evaluating the expert's testimony" that the judge in reaching her decision in the matter relied upon the victim's statements for the truth of the matter asserted, violating the hearsay rule.

"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted."'" Ibid. (quoting Marrero, supra, 148 N.J. at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984))). Evidentiary decisions of a trial court are reviewed utilizing the abuse of discretion standard. Pressler, Current N.J. Court Rules, comment 2.4 on R. 2:10-1 (2003) (citing Brown, supra, 170 N.J. at 147).

Generally, out of court statements used to prove the truth of the matter asserted are inadmissible hearsay. N.J.R.E. 802. A party may not use expert testimony as a vehicle for the "'wholesale [introduction] of otherwise inadmissible evidence.'" State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.) (quoting State v. Raso, 321 N.J. Super. 5, 16 (App. Div.), certif. denied, 161 N.J. 332 (1999)) (alteration in original), certif. denied, 165 N.J. 530 (2000). However, experts may rely upon hearsay evidence in formulating an opinion and testifying at trial provided the hearsay is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." N.J.R.E. 703. See also State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Evidence that may be considered by psychiatrists and psychologists testifying at a commitment hearing include criminal pre-sentence reports, In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); STU treatment reports, In re Commitment of A.X.D., 370 N.J. Super. 198, 201 (App. Div. 2004); and ADTC evaluation reports, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App Div.), certif. denied, ____ N.J. ____ (2005).

We are satisfied from a review of the record that Dr. Voskanian's consideration of the information contained in the documents was used for the purpose of formulating an evaluation concerning R.Z.R.'s present mental condition, which requires knowledge of past events. R.Z.R. argues that Dr. Voskanian exceeded the permissible scope by referencing the victim's statement surrounding the 1969 rape charge, which included allegations that R.Z.R. forcefully raped the victim. R.Z.R. denied the allegations and asserted that the act was consensual, resulting in him only pleading guilty to fornication. We would concur with R.Z.R.'s argument if the unproven allegation of rape "had provided a significant building block" in Dr. Voskanian's diagnosis. A.E.F., supra, 377 N.J. Super. at 490. However, in this matter, we are satisfied that Dr. Voskanian's opinion of paraphilia was based on other evidence including R.Z.R.'s own admission to Voskanian that the 1969 victim had requested him to stop, but he continued with the act of intercourse. We are also satisfied that R.Z.R.'s argument that the court improperly relied upon the hearsay contained in the documents is incorrect. R.Z.R. contends that the court accepted the hearsay statement of S.H. surrounding the sexual contact charge over the denial of R.Z.R. We determined that the judge, in referencing the victim's statement, was only commenting upon the credibility of R.Z.R.'s statements versus acceptance of the truth of the matter asserted by the victim:

[S.H.] is [S.W.'s] friend, and her story about being picked up, given rides, taken to the home is contained in that exhibit. In her statement she describes how her clothing was pulled down. This is contrary to the respondent's view who says that she was flashing him, displaying her bosom in a provocative manner. Nevertheless, he entered a guilty plea to sexual contact for personal sexual gratification. So, I tend to understand that the denials are not as believable inasmuch as there was this guilty plea.

We find no abuse in the admission of the documents, Dr. Voskanian's testimony, nor the court's referencing the documents in her opinion.

Lastly, defendant argues that the State failed to prove by clear and convincing evidence that R.Z.R. is subject to civil commitment under the SVPA. Judge Perretti was confronted with conflicting opinions concerning commitment of R.Z.R. to the STU. Dr. Voskanian opined that R.Z.R. is "highly likely" to re-offend, while Dr. Carlson concluded that R.Z.R.'s risk for sexual re-offense is "moderate," and Dr. Singer also determined that he did not have a "high risk" to re-offend. Confronted with conflicting opinions of the experts, the judge was required to evaluate the opinions and decide what weight to assign to each. As the fact finder, Judge Perretti was not required to give "controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd, 130 N.J. 484 (1993). The judge was free to "'adopt so much of [each opinion] as appears sound, reject all of [them], or adopt all of [them].'" Ibid. (quoting State Highway Comm'n v. Mayor & Bd. of Aldermen of Dover, 109 N.J.L. 303, 307 (E. & A. 1932)). After weighing the testimony of the experts, Judge Perretti determined at the initial hearing that the opinion of Dr. Voskanian was more persuasive, and concluded that R.Z.R. is highly likely to re-offend unless he receives inpatient treatment. We are satisfied that the record amply supports the judge's decision that R.Z.R. is a sexually violent predator in need of treatment at the STU. The record does not reveal that Judge Perretti's determination was a clear abuse of discretion. The standard of appellate review applicable to such determination mandates that we affirm Judge Perretti's decision.

 
Affirmed.

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."

Although not described as dangerous behavior by Dr. Voskanian, R.Z.R. admitted to Voskanian that while he was illegally selling drugs, he also traded drugs for sex with various women.

(continued)

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A-6193-02T2

RECORD IMPOUNDED

December 28, 2005