IN THE MATTER CIVIL COMMITMENT OF T.R.K.­ v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0510-03T20510-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF T.R.K.

__________________________________

 

Argued: December 12, 2005 - Decided January 20, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-286-02.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant T.R.K. (Yvonne Smith Segars, Public Defender, attorney; Brian Neff, Assistant Deputy Public Defender, of counsel; John Douard, Assistant Deputy Public Defender, on the brief).

Lisa Marie Albano, 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; Ledra H. Horowitz and Mary Beth Wood, Deputy Attorneys General, on the brief.

PER CURIAM

Appellant T.R.K. appeals from an order committing him 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. He argues that the trial judge erred in admitting hearsay over his objection, that the trial judge denied his right to confront witnesses by improperly limiting the cross-examination of the State's expert witnesses, and that the State failed to prove by clear and convincing evidence that appellant satisfies the criteria for civil commitment pursuant to the SVPA. We affirm.

On December 2, 2002, the State filed a petition seeking the involuntary civil commitment of T.R.K. under the SVPA. A temporary commitment order authorizing T.R.K.'s transfer to the STU was signed on December 10, 2002. Appellant waived his right to a hearing within twenty days and the hearing proceeded on August 7, 2003. By order entered the same day, T.R.K. was found to be a sexually violent predator and committed to the STU.

T.R.K. is a pedophile with a twenty-year history of sexually deviant behavior. The first incident occurred when T.R.K. was thirteen years of age when he had sexual intercourse with an eight year old child. He was adjudicated delinquent and placed on probation for one year with the requirement that he obtain counselling. The second incident occurred on March 27, 1998. The victim was his girlfriend's seven year old daughter. He was charged with sexual assault and endangering the welfare of a child. On June 2, 1998, he pled guilty to endangering the welfare of a child and was placed on five years probation. The third incident occurred on January 31, 1999. On that date, T.R.K. sexually assaulted his two year old daughter while changing her in a public restroom. He pled guilty to second degree sexual assault and was sentenced to five years imprisonment.

Dr. Charles Gnassi evaluated T.R.K. on April 15, 2003, and prepared a report based on this evaluation and the records maintained at the STU, including the clinical certificates in support of his commitment, presentence reports and police reports. Dr. Gnassi diagnosed T.R.K. with pedophilia, paraphelia NOS, personality disorder NOS, narcissistic personality, and a history of alcohol and cocaine abuse. The pedophilia diagnosis was based on T.R.K.'s long history of sexual arousal to children. In diagnosing T.R.K. with paraphelia NOS, Dr. Gnassi observed that T.R.K.'s sexual arousal from seeing and/or touching young children, especially his two year old daughter, is highly unusual. Dr. Gnassi also testified that T.R.K. admitted that drug use increased his sexual appetite.

Dr. Gnassi founded his diagnosis of personality disorder on T.R.K.'s pattern of admitting yet simultaneously denying his offenses. Dr. Gnassi noted that in December 2002, when T.R.K. was first committed to the Adult Diagnostic Treatment Center (ADTC), he freely admitted to his offenses and to having deviant sexual thoughts about young girls. However, when interviewed by Dr. Gnassi, T.R.K. was in denial, which led Dr. Gnassi to determine that T.R.K.'s internal controls were fragile. In diagnosing T.R.K. with narcissistic personality, Dr. Gnassi found that T.R.K. does not seem to spontaneously show remorse or have victim empathy.

Dr. Gnassi concluded that T.R.K.'s mental conditions and personality disorder predispose him to sexually offend. Dr. Gnassi recommended further in-patient treatment for T.R.K. because the out-patient treatment he had received on prior occasions was unsuccessful. The out-patient type of treatment "hasn't allowed him to change his behavior, control of sexual assault . . . towards children." Based on the absence of a completed sexual behavior treatment program and of any substance abuse treatment, Dr. Gnassi opined that if T.R.K. returned to the community, he would be at a high risk to reoffend.

Dr. Natalie Barone, Ph.D. also testified for the State. In evaluating T.R.K., Dr. Barone conducted a clinical interview on April 17, 2003, which lasted about one hour and fifteen minutes, and reviewed various reports and records, including presentence reports, clinical certificates and other independent evaluations. Dr. Barone also administered actuarial tests, such as the Static-99.

Dr. Barone noted that T.R.K. has a long-standing deviant sexual attraction to pre-pubescent girls and his deviancies are compulsive in nature. The fact that T.R.K. offended while he was on probation and molested his daughter in a public restroom speaks to his difficulties in controlling his deviant behavior. Moreover, the actuarial tests conducted suggest that T.R.K. has intimacy defects and a pro-offending attitude, which relate to a higher level of sexual recidivism.

Dr. Barone found that T.R.K. has "extremely poor judgment," which is evidenced by his release plans to live with his mother in a "high drug trafficking area" even though he has substance abuse problems, and his plans to marry a woman with alcohol problems he met at the ADTC. Additionally, T.R.K. has a lack of motivation for therapy, which has been found to be related to higher rates of recidivism.

Based on these observations, Dr. Barone diagnosed T.R.K. with pedophilia, alcohol abuse, and cocaine abuse, all of which predispose him to sexually misbehave. Unlike Dr. Gnassi, Dr. Barone testified that she did not have enough information to diagnose T.R.K. with a personality order on Axis II. Dr. Barone's diagnosis was based on several factors. First, T.R.K. demonstrates a highly deviant and diverse sexual arousal pattern which is difficult to treat. He engages in inter-familial and extra-familial child molestation. Additionally, he possesses a pro-pedophilic cognitive set, as confirmed through psychological testing. T.R.K. "perceives children as sexual objects, and doesn't appear to see anything deviant or wrong with that." Moreover, "he tends to externalize blame for his sex offenses, and, in fact, goes beyond that and even takes a victim stance himself." Although T.R.K. tends to blame his deviancy almost entirely on his substance abuse history, Dr. Barone noted that T.R.K.'s pedophilia would predispose him to act in a sexually deviant manner even without a substance abuse problem. Thus, Dr. Barone opined that, to a reasonable degree of psychological certainty, T.R.K. has serious difficulty controlling his sexually violent behavior and presents a significant risk to reoffend.

Based on this testimony and the documentary evidence presented, Judge Perretti found the State demonstrated by clear and convincing evidence that T.R.K. continued to be a sexually violent predator. As Judge Perretti noted, "there is no doubt that the first criteria of the statute has been met" because T.R.K. has been convicted of two sexually violent offenses. In addition, based on the testimony of the State's experts, the second and third elements were also established because T.R.K. suffers from "abnormal mental conditions and personality disorders, that adversely impact his volitional, emotional and cognitive capacities in such a way as to predispose him to commit sexually violent acts." Thus, if not confined, Judge Perretti concluded T.R.K. would most likely commit sexually violent acts.

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(b), "[t]he State must prove that threat [to the health and safety of other 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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

It is now well-settled that the SVPA is civil, not criminal, legislation and that commitment thereunder is not punitive, but rather subject to an independent regulatory process imposed for the purposes of treatment and protection of the public. N.J.S.A. 30:4-27.34(b); In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002); In re Civil Commitment of P.C., 349 N.J. Super. 569, 579-80 (App. Div. 2002); In re Civil Commitment of J.P., 339 N.J. Super. 443, 461 (App. Div. 2001). Because the legislative intent underlying the SVPA remains regulatory, State v. Mumin, 361 N.J. Super. 370, 385 (App. Div. 2003), overruled on other grounds, State v. Bellamy, 178 N.J. 127 (2003), we find no violation of the United States or State Constitutions.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to confront "the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, 10. The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a "'fair opportunity to defend against the State's accusations.'" State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). A defendant exercises his right of confrontation through cross-examination, which is the "'greatest legal engine ever invented for the discovery of truth.'" California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970) (quoting 5 Wigmore on Evidence 1367 (3d ed. 1940)). The SVPA, however, is a civil statute and commitment under the SVPA is an independent regulatory process imposed for the purposes of treatment and protection of the public. N.J.S.A. 30:4-27.34(b); P.C., supra, 349 N.J. Super. at 580; J.P., supra, 339 N.J. Super. at 461.

Recently, In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004) addressed the applicability of the Confrontation Clause to a civil commitment proceeding. The defendant in G.G.N. urged this court to adopt the principles espoused by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). G.G.N., supra, 372 N.J. Super. at 57. In addressing the defendant's contention, this court noted that it could not find one case in any jurisdiction that has extended Crawford to a civil commitment proceeding, where the burden of proof is less than beyond a reasonable doubt. Ibid. In fact, the Supreme Court of Massachusetts specifically declined to do so in Commonwealth v. Given, 808 N.E.2d 788, 793 (Mass. 2004). In Given, the Court refused to apply Crawford to a civil commitment case because such proceedings are civil, not criminal. Ibid. This court also declined to apply the Confrontation Clause in G.G.N. G.G.N., supra, 372 N.J. Super. at 58.

Principles of fundamental fairness, however, apply in civil commitment proceedings. State v. Bellamy, 178 N.J. 127, 138 (2003). Thus, a person subject to involuntary civil commitment is entitled to a hearing at which the committee may cross-examine witnesses and present evidence on his behalf. In re D.C., 146 N.J. 31, 48 (1996) (citing In re S.L., 94 N.J. 128, 137 (1983)). A proceeding in which cross-examination was precluded in its entirety or unfairly truncated may require a new hearing. That is not this case.

Here, T.R.K. had substantial opportunity to cross-examine Dr. Gnassi regarding his experience and to challenge the credibility of his opinion and to challenge Dr. Barone concerning the scoring of actuarial testing devices. To be sure, the trial judge precluded T.R.K's attorney from exploring Dr. Gnassi's ability to follow patients he had treated at the ADTC and whether he had the opportunity to treat or have contact with sex offenders in the community. The trial judge also prevented T.R.K.'s attorney from questioning Dr. Barone about revised scoring procedures for the Static-99 test. These rulings, however, did not prevent a thorough and wide-ranging cross-examination of both witnesses and did not compromise the fairness of the hearing.

We are also satisfied that the trial judge properly admitted hearsay contained in medical and legal documents. Unlike In re the Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004) and G.G.N., supra, Drs. Gnassi and Barone offered their opinions based on their evaluations of T.R.K. Their professional opinions were informed by the material contained in prior treatment and legal documents in conformity with professional standards. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005). Neither Dr. Gnassi nor Dr. Barone functioned simply as a reporter of others' observations and opinions.

Finally, we reject T.R.K.'s contention that the State failed to carry its burden of proof. Our review of a trial judge's decision to commit is extremely narrow. State v. Fields, 77 N.J. 282, 311 (1978). The trial judge's determination is given "'utmost deference' and modified only where the record reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459 (quoting Fields, supra, 77 N.J. at 311). We have surveyed the record in its entirety and are satisfied that the trial judge's findings of fact are amply supported by the record and that the governing legal principles have been correctly applied to the facts as found. Accordingly, the August 7, 2003 order of involuntary commitment is affirmed.

 
Affirmed.

Holding hearsay testimony is barred in a criminal trial under the Confrontation Clause unless witnesses are unavailable and defendant had a prior opportunity to cross-examine those witnesses.

As to the alternative procedure for scoring the Static-99, counsel should be afforded the opportunity to make an offer of proof if he requests to do so. R. 1:7-3.

(continued)

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A-0510-03T2

RECORD IMPOUNDED

January 20, 2006