IN THE MATTER CIVIL COMMITMENT OF B.X.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0270-03T20270-03T2

A-4709-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF B.X.A.

_____________________________

 

Submitted April 4, 2006 - Decided June 21, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SVP-217-01.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Richard Sparaco, Designated

Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for the State of New Jersey (Jean Reilly, Deputy Attorney General, of counsel; Leena A. Raut, Deputy Attorney General, on the brief).

Appellant filed a supplemental pro se brief.

PER CURIAM

On August 17, 1981, defendant was sentenced to two consecutive twenty-year prison terms with two consecutive ten- year terms of parole ineligibility. A Petition for Civil Commitment under the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, (SVPA), was filed by the State Attorney General's Office on December 10, 2001. B.X.A. was temporarily committed to the Special Treatment Unit (STU) on January 3, 2002. His hearing took place on May 15, 2002, and June 2, 2002. Following the hearing, Judge Serena Perretti found defendant was a predator within the meaning of the SVPA and issued an order continuing his commitment for a year. B.X.A. did not appeal from this order.

Following a review hearing on April 7, 2003, Judge Perretti entered a judgment finding clear and convincing evidence that B.X.A. continued to be a sexually violent predator in need of involuntary civil commitment and ordered that his commitment to the STU be continued. A second review hearing was held on March 26, 2004, and on that date Judge Perretti entered judgment continuing the commitment following a finding by clear and convincing evidence that B.X.A. continued to be a sexually violent predator in need of involuntary civil commitment. Thereafter, on September 10, 2003, we granted B.X.A.'s motion to file a notice of appeal nunc pro tunc to appeal the judgment of April 7, 2003, the first review hearing, and on May 5, 2004, B.X.A. filed a notice of appeal from the judgment of March 26, 2004. We consolidated these appeals for determination in this opinion.

It is undisputed that defendant was twice convicted of sexual offenses. His first conviction for a sexual offense occurred on July 25, 1975, following a jury trial in which he was found guilty of rape, armed rape, robbery and armed robbery. The incident giving rise to the conviction occurred on November 14, 1974. The twenty-five-year old victim returned home from shopping, parked her car and entered her apartment building in Newark. As she walked into the building, she saw B.X.A. behind her. After checking her mailbox, she walked up the steps to her apartment where she was confronted by B.X.A. As she attempted to pass, he grabbed her coat, shoved a knife at her and threatened to kill her if she did not keep quiet. He pulled her through a side door leading to an alley way and grabbed her pocketbook, emptying its contents on the ground. He then forced the victim to undress, ordered her to lie down on her coat and raped her while holding the knife to her throat. Afterwards he ran off with the victim's wristwatch and $2. For these crimes defendant was sentenced on October 6, 1975, to a seven to ten year prison term. He was paroled on November 6, 1978, after completing three years of his sentence.

The predicate offense for B.X.A.'s commitments is a first-degree aggravated sexual assault that occurred on December 30, 1979, while he was on parole. B.X.A. followed a woman after she parked her car behind her apartment complex and began walking to her building. He held a knife to her throat and forced her into a garbage room in the apartment complex where he first took $40 from her person after he drew the knife across her throat and asked her for money. B.X.A. then forced the woman to a table, knocked out all the lights in the room and ordered her to remove her clothing so that she would not follow him. He then shoved the knife at her throat, threw her skirt over her head and vaginally raped her. On April 2, 1981, a jury found B.X.A. guilty of first-degree aggravated sexual assault, first-degree robbery and fourth-degree unlawful possession of a weapon. On August 17, 1981, he was sentenced to two consecutive twenty-year prison terms.

The final hearing on defendant's commitment was conducted on May 15, 2002, and June 2, 2002. The State called two psychiatrists, Dr. Michael McAllister and Dr. Robert Carlson, and B.X.A. produced Dr. Paul F. Fulford, a psychologist. Dr. McAllister diagnosed B.X.A. with paraphilia NOS for non-consenting sex, sexual sadism and antisocial personality disorder, and he found that B.X.A. was highly likely to reoffend. He did not conduct a clinical interview but based his determination on defendant's record and on the various materials submitted to him concerning the offenses and records from the Sex Offender Unit at Avenel where defendant had been confined. He found that defendant had poor self-control with deeply rooted sexual perversions requiring extensive and lengthy treatment.

Dr. Carlson did interview B.X.A. While noting that B.X.A. was at that time fifty-one years old and that the risk of reoffense for sexual offenses tends to decrease as age increases, he diagnosed B.X.A. with an antisocial personality disorder and noted that test results considered him a high risk for reoffending.

Testifying for the defense, Dr. Paul Fulford stated that he interviewed B.X.A. and administered certain tests. The Wide Range Achievement Test III indicated that defendant was at the seventh grade level. The Beck Depression Inventory II test showed that defendant was in borderline range of depression. The projective personality test known as the Rotter Incomplete Sentences Blank revealed nothing unusual. Dr. Fulford diagnosed B.X.A. with substance abuse in remission and adult antisocial behavior. He did not find that B.X.A. was predisposed to commit an act of sexual violence. He noted that the evaluations for sentencing under the Sex Offender Act for the two offenses relied upon by the State did not find him qualified for sentencing under the Sex Offender Act. Moreover, he stated that since the sexual assaults were committed during the course of robberies, he did not find that they were part of a deviant sexual arousal pattern. Dr. Fulford stated that B.X.A. was "an untreated sex offender, who could profit from sex offender specific treatment only if his psychiatric treatment needs [were] met." He opined that B.X.A. did not meet the criteria for commitment as a sexually violent predator.

Judge Perretti found that the testimony of Dr. Fulford was not persuasive save for the fact that he acknowledged that B.X.A. was an untreated sex offender who could profit from treatment. The judge found by clear and convincing evidence that B.X.A. suffered from abnormal mental conditions and personality disorders which affected his volitional, cognitive and emotional capacities which predisposed him to sexually violent behavior and created a high risk that defendant would reoffend.

The first review hearing took place on April 7, 2003. Notably, after Judge Perretti's order of June 3, 2002, continuing B.X.A.'s commitment, he refused all treatment at the STU. At the hearing the State called Dr. Luis Zeiguer. Since B.X.A. refused to be interviewed by Dr. Zeiguer, both Dr. Zeiguer's report and his testimony were based upon a review of the records of the STU, the Department of Corrections, the pre-sentence and investigation reports of defendant's two sexual offenses, the State's Petition for Civil Commitment, and the testimony of Dr. McAllister and Dr. Carlson at the initial commitment hearing. He found that B.X.A.'s lack of empathy and refusal of treatment made him an extremely high risk to reoffend. He diagnosed B.X.A. with paraphilia NOS, a mental abnormality of personality disorder making him likely to engage in active sexual violence if not committed to the STU. He testified further that B.X.A. is unable to recognize his deviant sexual arousals, underscoring the high risk that he would act in a sexually aggressive manner outside of the STU.

B.X.A. called Robert LaForgia, Supervisor of Education at East Jersey State Prison, and Florence Landau, a teacher and counselor at the prison. Mr. LaForgia testified that he had daily contact with B.X.A. for several years during his incarceration at East Jersey. B.X.A. was one of his students as well as a teacher's aide. He stated that B.X.A. completed his GED, regularly attended classes, followed orders of the staff and did not engage in any inappropriate behavior. Ms. Landau testified that B.X.A. worked for her in her office as a clerk. She said defendant was a very organized person, and there was no incident of sexually inappropriate behavior against her by defendant.

In her opinion of April 7, 2003, Judge Perretti stated that Dr. Zeiguer's testimony was uncontradicted. She found from his testimony that B.X.A. exhibited "a severe personality disorder" based on his repetitive offenses of a sexually violent nature, and "extraordinary lack of control and [] deeply entrenched paraphilia for non-consenting sex." She noted that B.X.A. had refused treatment and found that he had little or no control of his sexual behavior, so that it was highly likely that he will recidivate if released from the STU.

The second review hearing was held on March 26, 2004. At the hearing the State presented the testimony of Pogos H. Voskanian, M.D., a psychiatrist. He stated that B.X.A. refused to even to come into the interview room so that he based his opinion on other psychological and psychiatric evaluations between June 23, 2000 and May 9, 2000, as well as the adult pre-sentence reports, South Woods State Prison records, the State's Petition for Civil Commitment, and the STU treatment records. He diagnosed B.X.A. with paraphilia NOS, sexual sadism, polysubstance dependence and antisocial personality disorder. He said that B.X.A. derived sexual pleasure from putting the victim in a severely traumatized state. His admission to Dr. Benjamin Liberatore on December 10, 2001, that he admitted to "randomly chasing" females in [their] twenties or thirties to rob at knife point at night and becoming "aroused when he asks the victim to show him if they wear jewelry around their chest or torso" and would become "out of control" as he controlled the women verified Dr. Voskanian's diagnosis that B.X.A. was "disturbed" sexually, and lacked empathy. He noted the aberrant conduct began when B.X.A. was at a young age and there was no subsequent change. B.X.A. never expressed remorse, and he attempted to "manipulate the system" while incarcerated. The fact that B.X.A. committed the predicate offense while on parole led Dr. Voskanian to conclude that B.X.A. was at risk to engage in acts of sexually violence if released from the STU.

B.X.A. called no witnesses at the second review hearing. On March 26, 2004, Judge Perretti issued an opinion stating that nothing had changed since B.X.A. had earlier been adjudicated as a sexually violent predator and that Dr. Voskanian's uncontradicted testimony was substantiated by the facts in the record. Judge Perretti concluded:

[B.X.A.]'s ability to control himself is demonstrated to be almost nil. I find the evidence to have been clear and convincing, the respondent is a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional an cognitive capacities in such a way as to predispose him to commit sexually violent acts. I find that he has little or no control over his general behavior, criminal behavior, and that goes for his sex offending behavior. I find it is highly likely that he will recidivate if not continued here. I would say for further treatment, but since he refuses treatment, he must remain here for the protection of the public because of the danger he poses as a sexually violent predator.

On appeal B.X.A. makes the following arguments through appellate counsel:

POINT I - THE APPLICABLE CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF FOR COMMITMENT UNDER THE SVPA WAS NOT MET BY THE STATE REGARDING ANY OF THE REQUIRED ELEMENTS JUSTIFYING COMMITMENT UNDER THE ACT.

POINT II - THE COURT BELOW COMMITTED PLAIN AND REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE THE STATE'S EXPERTS' OPINIONS TO THE EXTENT THEY RELIED UPON COMPLEX DIAGNOSES CONTAINED IN OTHER EXPERTS' REPORTS.

POINT III - MEDICAL RECORDS AND REPORTS QUOTING OR PARAPHRASING OTHER SUCH RECORDS OR REPORTS CONTAINING SUBJECTIVE AND OR COMPLEX DIAGNOSES SHOULD HAVE BEEN PRODUCED AND MADE AVAILABLE TO THE DEFENSE IN ORDER TO ALLOW FOR A PROPER CROSS-EXAMINATION OF THE EXPERTS WHO RELIED UPON THOSE RECORDS.

POINT IV - B.X.A.'S DEFENSE WAS FATALLY PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL.

B.X.A. submitted a pro supplemental brief on November 10, 2005, in which he makes the following argument:

THE HEARING COURTS COMMITMENT OF B.X.A. UNDER THE SEXUALLY VIOLENT PREDATOR ACT (SVPA) VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION BECAUSE B.X.A. ADDITIONAL CONFINEMENT WAS THE RESULT OF THE STATE'S DELIBERATE AND UNJUSTIFIED DELAY IN SEEKING B.X.A.'S COMMITMENT UNTIL THE END OF HIS CRIMINAL SENTENCE, DESPITE PRIOR ADTC EVALUATION WHICH INDICATED THAT B.X.A. WAS IN NEED OF PSYCHIATRIC TREATMENT TO ADDRESS TAILORED NEEDS OF B.X.A. (Not Raised Below.)

For commitment of a person to the STU, the State must prove that the alleged predator committed a "sexually violent offense. . . and 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 nomenclature of 'mental abnormality' or 'personality disorder' is not dispositive. What is important is that . . . the mental condition must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). The alleged predator must be substantially unable to control sexually harmful conduct. To meet this standard the State must prove 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." Id. at 132. In other words, the State must prove that the alleged predator's "propensity to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others. N.J.S.A. 30:4-27.26.

There is no doubt that B.X.A. committed sexually violent offenses. Moreover, we underscore that although civil commitment to the STU constitutes a "significant deprivation of liberty" and is bordered by significant constitutional protections, W.Z., supra, 173 N.J. at 125-26, there is no general right to refuse examination by a State psychiatrist. See N.J.S.A. 2A:84A-19(a); In re Civil Commitment of G.A., 309 N.J. Super. 152, 163-64 (App. Div. 1998); Lewis v. Dep't of Corr., 365 N.J. Super. 503, 506 (App. Div. 2004); State v. Szatmari, 163 N.J. Super. 418, 419 (Law Div. 1978). There is also no psychologist-patient privilege, N.J.S.A. 45:14B-28(a), N.J.R.E. 505, and no patient-physician privilege, N.J.S.A. 2A:84A-22.3(a), N.J.R.E. 506. Defendant cannot benefit from his unjustified refusal to cooperate with the State experts.

After careful review of the record, we have determined that the arguments made on behalf of and by B.X.A. are without sufficient merit to warrant discussion in a written opinion. We make only the following comments.

Our appellate review of judgments of commitment is extremely narrow and is subject to modification only where the record reveals a clear abuse of discretion. In re the commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The ultimate determination of a sex offender's risk of reoffending is reserved to the sound discretion of the trial judge. In re Registrant G.B., 147 N.J. 62, 79 (1996). Here the State has met its burden of proving by clear and convincing evidence at the initial hearing resulting in the finding that B.X.A. was a sexual predator and in need of continued civil commitment. The testimony of Dr. Zeiguer noting B.X.A.'s record of armed robberies with rapes, and the predatory nature of the crimes was a proper basis for a diagnosis of paraphilia NOS. The evidence of antisocial personality disorder is also well-documented in the record and buttressed by the testimony of Dr. Zeiguer and Dr. Voskanian.

Judge Perretti's evidentiary rulings permitting the admissibility of the pre-sentence reports, police reports and reports of prior psychiatric and psychological evaluations did not constitute an abuse of discretion. See also N.J.R.E. 803(c)(22); State v. Newman, 132 N.J. 159, 170 (1993); N.J.R.E. 404(b); State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001); State v. Burris, 298 N.J. Super. 505, 511 (App. Div.) certif. denied, 152 N.J. 187 (1997). Moreover, the argument that B.X.A.'s counsel was ineffective is totally without merit because he is unable to satisfy either prong of the test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984), and adopted our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Finally defendant's argument that the State violated the ex post facto clause of the State and federal constitutions by waiting until he was at the end of his prison term before seeking sex offender treatment is without legal basis since that constitutional protection is applicable only upon the imposition of punishment, Doe v. Poritz, 142 N.J. 1, 42 (1995), and the SVPA is a civil statue for treatment of the sexually dangerous rather than a punitive measure. State v. Bellamy, 178 N.J. 127, 138 (App. Div. 2003); In re the Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); In re the Commitment of P.Z.H., 377 N.J. Super. 458, 466 (App. Div. 2005).

 
Affirmed.

Defendant has an extensive criminal record consisting of a variety of juvenile offenses beginning when he was eight years old, and his non-sexual offenses include armed robbery, larceny, criminal non-support and other offenses while incarcerated.

On August 25, 1971, and January 14, 1974, B.X.A. was arrested and charged with rape. Tried to a jury, he was found not guilty on both charges.

(continued)

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A-0270-03T2

RECORD IMPOUNDED

June 21, 2006