IN THE MATTER CIVIL COMMITMENT OF F.Z.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0625-05T20625-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF F.Z.S. SVP-393-05.

__________________________________

 

Submitted November 6, 2006 - Decided December 15, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-393-05.

Ronald K. Chen, Public Advocate, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

F.Z.S. appeals from an order of civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. F.Z.S. does not dispute that he has twice been convicted of a "sexually violent offense," as defined by N.J.S.A. 30:4-27.26, so we need not review the factual background in detail. He was first convicted of sexually violent offenses in the early 1980's based on evidence that he had engaged in multiple sexual acts against his stepdaughter D.S. when she was between the ages of about four and fifteen. He pled guilty to his second offense on January 27, 2005, based on evidence that he had engaged in multiple sexual acts in 1997 against F.E., an unrelated minor girl who resided in the same residence as F.Z.S. Both young girls were subjected to multiple occasions of penile and digital penetration, among other acts perpetrated by F.Z.S.

On April 6, 2005, prior to his scheduled release from New Jersey State Prison in connection with the second offense, the State moved for a civil commitment. A temporary order of commitment was entered the following day. Serena Perretti, J.S.C., decided the matter on the record at the conclusion of the final commitment hearing on August 22, 2005, and entered an order the following day committing F.Z.S. to the Special Treatment Unit and setting a one-year review date.

Two experts testified at the final commitment hearing, Arnaldo Apolito, M.D., a psychiatrist on behalf of the State, and Timothy Foley, Ph.D., a psychologist on behalf of F.Z.S. No other witnesses were called. Judge Perretti made detailed findings of fact, carefully explaining the basis for her findings, and then stated her ultimate conclusions.

Initially, she found

that there is absolutely no reasonable question about this respondent's deviant behavior with the 9 year old, [F.E.], nor is there any reasonable question about the respondent's deviant behavior with the 15 year old, [D.S.] There is no reasonable question but . . . that the respondent committed his deviant sexual act with [F.E.] after he had been committed to State's Prison for the deviant acts with [D.S.]

The judge then addressed the remaining issues in the case.

[A] collection of records of treaters' reports to the Special Classification Review Board . . . show that the respondent did very poorly in treatment. Although his attendance at group was always good, he never progressed beyond the first level of treatment, and his participation in class and group was rated as poor.

At the end of the respondent's confinement in the State Prison system there was a psychological evaluation . . . . The respondent discussed his sex offending history and told the reporter . . . that he had had intercourse with [D.S.], thinking that she, [D.S.], was his wife. It was a case of mistaken identity, although he says he did not recall the incident, having been drinking at a bar. He also discussed the incident with [F.E.]. He told the psychologist that the examiner at Avenel had falsified his evaluation and had falsified the statements of the respondent that are reported by the Avenel evaluator. He also claims that another psychologist had falsified records, and a more recent evaluator had "cut and pasted it" into the record.

. . . .

[T]he information about these matters has been derived from the various statements that the respondent has made to various different people at different times, including statements made by him in and out of court under oath.

Dr. Apolito . . . discussed his use of a variety of sources . . . . These are the sort of documents which are customarily and reasonably [relied on] by people in the profession for making evaluations. . . .

The respondent, as to the incident with [F.E.], was, of course, admitted, but claims that the victim initiated the deviant behavior. The respondent also claimed that the system had made up a cluster of accusations in order to detain him. . . . After, in his testimony and in his report, discussing the criminal history[,] as he, Dr. Apolito, understood it, and I find he understood it substantially in accordance with the record at hand, including the Judgments of Conviction and the statements of the respondent, he made his diagnoses. He diagnosed pedophilia, attracted to females non-exclusive. This is a diagnosis based upon the respondent's demonstrated history of attraction to and acts with female minors over a 6 month period. The doctor had no question, nor do I, as to the diagnosis. It fits all of the criteria of the DSM. . . .

Dr. Foley also diagnoses pedophilia. . . .

He does diagnose personality disorder NOS, which he defines as the respondent's persistent acting outside of the boundaries approved by social norms. His diagnosis is based on his observations of the respondent's conduct over the years, as disclosed in the record that has been accumulated in the case. . . .

It was the doctor's testimony that, as a result of his diagnosed conditions, the respondent is predisposed to commit sexually violent acts. . . . [T]he respondent is made more vulnerable to this predisposition resulting from his pedophilia by his alcohol dependence, which promotes impulsivity, disinhibits, controls and negatively influences judgment, thus, permitting acting out. The conditions that he diagnosed were stated by the psychiatrist to adversely influence the respondent's cognitive, emotional and volitional capacities. He categorizes the respondent's risk to re-offend as high. He notes that the respondent made no progress in ADTC, which has been established to my satisfaction as a result of my review of the ADTC records. According to the psychiatrist, in the interview the respondent said that he refused to participate because he does not consider himself a sex offender and . . . disclosures in participation would have been detrimental to his appeal. The psychiatrist points out the many inconsistencies in the respondent's reports of his sex offending behavior and cites this fact, and it is a fact, as demonstration that the respondent has no insight into the reasons for his crimes. Indeed, he has stated variously that he has not committed any crimes. If he has not committed any crimes and doesn't see that his actions consist of persistent criminal behavior against juveniles there is no reason to believe he will not continue since, in his mind, there's nothing wrong with it. The psychiatrist has the opinion that the respondent has difficulty controlling his sex offending behavior and points to the fact that the respondent re-offended after having been previously incarcerated and after having acknowledged that he learned that what he did the first time was wrong.

Dr. Foley has a different opinion. Except for his opinion, he pretty much agrees with Dr. Apolito. . . .

. . . .

Dr. Foley does not consider the respondent to be highly likely to recidivate in the community with supervision. . . . And that supervision, according to his testimony, would have to guarantee no alcohol abuse and no proximity to children. If these two factors could be guaranteed by supervision in the community then the respondent would be less than highly likely to recidivate. . . .

It is my conclusion that guarantee of lack of alcohol use and lack of proximity to children could not be accomplished by supervision in the community. It would need 24/7 supervision to assure the community of those safeguards, and that is not what community supervision for life provides. Should the community supervision for life add, as a requirement, attendance and treatment either for substance abuse or sex offense Dr. Foley is of the opinion that the respondent would, if mandated, attend. However, he is of the opinion that the respondent would not profit from either because of his psychological rigidity, his low intellect and his illiteracy. Thus, these two possible safeguards, which could be mandated by the community supervision for life, wouldn't work with this respondent. He is predicted by Dr. Foley to have only minimum improvement over a long period of time. Thus, the respondent is, according to Dr. Foley, not able or willing to devise strategies which would permit him to intervene when and if the risk arises, when and if the arousals of the pedophilia start to take hold.

In view of the way in which Dr. Foley circumscribes his opinion that the respondent is not highly likely to recidivate, I do not accept Dr. Foley's opinion that the respondent is not highly likely to recidivate.

The evidence before me presented by the State is clear and convincing and I am clearly convinced that the respondent is a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely impact his emotional, cognitive and volitional capacities in such a way as to predispose him to commit sexually violent acts. I find that he has serious difficulty controlling his sex offending behavior and I find that he is highly likely to commit sexually violent acts if not confined for custody and hopefully, treatment.

I do not accept the respondent's story that he only offended once against [D.S.] and I certainly do not accept the respondent's new story that . . . he never saw [F.E.]. He, indeed, had [a] long history of offending and re-offending against these people and it is noteworthy that the crimes against [F.E.] were only brought to prosecution when this poor soul was confined in a mental institution.

F.Z.S. contends on appeal that the State did not clearly and convincingly prove that F.Z.S.'s state of mind and sexual dangerousness at the time of the hearing because the State's expert relied on stale information with respect to D.S. and not on F.Z.S.'s condition at the time of the hearing. F.Z.S. also argues that the expert on his behalf administered a psychological test that suggested that F.Z.S. was not sexually attracted to prepubescent children. In addition, his expert opined that community supervision for life would be adequate to ameliorate any risk F.Z.S. may present. Finally, F.Z.S. contends that Judge Perretti erred in admitting certain evidence under N.J.R.E. 703.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by F.Z.S. are without sufficient merit to warrant extensive discussion in this opinion, and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on August 22, 2005. R. 2:11-3(e)(1)(A), (E). The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We add the following.

The scope of appellate review of a judge's evidentiary rulings is limited to determining whether he or she mistakenly exercised discretion in admitting or excluding evidence. We find no mistaken exercise of discretion here. An evaluating expert is entitled to consider past psychological and psychiatric evaluations in rendering his opinion "as long as the opinion ultimately rendered . . . is that of the witness based on his or her own evaluation." In re. Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div. 2005). The evidence does not support a conclusion that Dr. Apolito merely parroted the opinions of earlier experts, but rather reached his own conclusions as to diagnosis, opinion, and recommendations.

Affirmed.

 

(continued)

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9

A-0625-05T2

RECORD IMPOUNDED

December 15, 2006