IN THE MATTER CIVIL COMMITMENT OF J.L.E.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1897-02T21897-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF J.L.E., SVP-238-02.

__________________________________

 

Submitted March 27, 2006 - Decided April 24, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

SVP-238-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ellis L. Tepperman, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood, Deputy Attorney General, on the brief).

PER CURIAM

J.L.E. 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 raises the following points:

POINT I

THE HEARING COURT'S RULING ON THE ISSUE OF APPELLANT'S CONTINUED COMMITMENT IN THE ABSENCE OF THE REQUIRED TESTIMONY OF A PSYCHIATRIST ON APPELLANT'S TREATMENT TEAM VIOLATED PARAGRAPH B OF SECTION 27.30 OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT N.J.S.A. 30:4-27.24 ET. SEQ., CONSTITUTING PLAIN AND REVERSIBLE ERROR.

POINT II

THE SVPA AS APPLIED VIOLATES THE DOUBLE JEOPARDY AND EX POST FACTO CLAUSES OF THE UNITED STATES CONSTITUTION AND SIMILAR PROHIBITIONS IN THE NEW JERSEY CONSTITUTION, AND THE RIGHTS TO DUE PROCESS AND EQUAL PROTECTION GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THEIR COUNTERPARTS IN THE NEW JERSEY CONSTITUTION. (NOT RAISED BELOW.)

POINT III

THE EVIDENCE PRESENTED AT THE HEARING IN SUPPORT OF CONTINUING COMMITMENT DID NOT MEET THE CLEAR AND CONVINCING STANDARD.

We reject J.L.E.'s contentions and affirm.

On March 13, 2002, the State filed a petition seeking the involuntary civil commitment of J.L.E. under the SVPA. A temporary commitment order authorizing J.L.E.'s transfer to the STU was signed on March 21, 2002. After several adjournments, an initial hearing was conducted on November 20, 2002. Following summations of counsel on November 21, 2002, Judge Freedman found J.L.E. to be a sexually violent predator and committed him to the STU.

J.L.E. has a history of deviant sexual behavior. In 1989, he was placed in a foster home after being arrested for criminal sexual contact with his grandmother. Those charges were dismissed. In 1991, he pled guilty to attempted sexual assault of D.R., a forty-six-year-old woman whom he followed, chased, caught, punched in the face, and attempted to rape. He was sentenced to a six-year term of incarceration with a one-year mandatory minimum. J.L.E. was released from incarceration on July 30, 1996.

Almost one year later, on June 5, 1997, he was arrested and charged with terroristic threats and attempted sexual assault of his great aunt, a seventy-five-year-old woman, whom he followed into a bedroom while the woman was trying to retrieve something. J.L.E. pushed her onto the bed and ordered her to take off her clothes. He told the woman that he was going to have sex with her or he would kill her. After she replied that you will have to kill me first, J.L.E. pulled down his pants and told the woman to suck his penis. When she refused, he grabbed her between the legs. He pled guilty to second-degree attempted sexual assault.

A December 1997 report from the Adult Diagnostic and Treatment Center (ADTC) indicated that J.L.E. presents with "a chronic history of severe emotional and behavior problems . . . include[ing] physical and sexual violence, fire setting, cruelty to animals, antisocial criminal behaviors . . . and severe family problems." Clinically, he showed "poor impulse control" and left the impression of someone "who remains at high risk for sexual and other violence in the future."

Following his plea, he was sentenced on January 9, 1998, to the ADTC for a term of seven years. On November 14, 2001, in anticipation of his release, J.L.E. was interviewed by psychiatrist Dr. Roger Harris. J.L.E. reported, "he likes older women and wants to date them when he gets out of prison." Harris indicated that J.L.E. "does not seem to appreciate how [his] interest could get him in trouble." Harris also felt that the actuarial instrument estimates that his risk to sexually re-offend was high. He also believed the MnSOST-R and Static 99 estimates his risk at fifty percent or greater for reoffending. Clinically, Harris found that J.L.E. "has shown a relentless pattern of not being able to control his deviant arousal" and recommended that he be civilly committed.

At his civil commitment hearing, two experts testified on behalf of the State: psychiatrist, Dr. Howard Gilman, and psychologist, Dr. Robert Carlson. Gilman interviewed J.L.E. on two occasions, June 12, 2002, and on August 14, 2002, and spoke with him briefly the morning of the hearing. Gilman formed his opinion based on his review of the available documentary information and his interviews. He provided a provisional diagnosis of paraphilia NOS. Although, by history, Gilman was not able to decisively conclude that J.L.E.'s behavior was in part due to sexual deviance, he believed that there were "significant behaviors which raised the possibility that there may have been a sexual deviance, specifically one that involved sadistic or forceful sexual acting out on others, possibly having to do with older women, and significantly older women."

Reviewing documents, Gilman found J.L.E. has difficulty conforming to social norms, has been in trouble with the law as both a juvenile and adult, has provided inconsistent reports, which appear to support substantial lying, and shows aggressiveness, impulsivity, a disregard for the safety of others, and lack of remorse. According to Gilman, those considerations, together with other psychological evaluations conducted, lead to the conclusion that J.L.E. suffers from an antisocial personality disorder.

Gilman also diagnosed alcohol and marijuana abuse, both in institutional remission. He opined that J.L.E. is unable to simply exert control not to offend, given the illnesses from which he is suffering and his personality disorder. He believed his risk of sexually re-offending is characterized "[a]s significantly elevated." Although J.L.E. has been in treatment, Gilman was of the opinion to a reasonable degree of medical certainty that J.L.E. "has not been able to make significant use of that treatment thus far" and would have serious difficulty controlling his sexually violent behavior.

Dr. Carlson interviewed J.L.E. on June 24, 2002. Based upon his interview and review of the record, his diagnostic impression was that J.L.E. suffers from alcohol dependence, paraphilia NOS, and personality disorder NOS. During his evaluation, J.L.E. provided detailed accounts of his sexual misbehavior, which in part varied with those given to other evaluators. He found a significant history of antisocial behavior going back to childhood, which included fire setting and animal abuse. He characterized J.L.E.'s progress at ADTC as "mediocre." He believed that the mental conditions he diagnosed predispose him to commit acts of sexual violence. Carlson opined that J.L.E. was subject to depression and anxiety that destabilizes him and causes him to self-medicate with alcohol, preventing him from comporting with social acceptable behavior, thus impacting him both volitionally and emotionally. He concluded to a reasonable degree of psychological certainty that J.L.E. has a significant risk to sexually re-offend. J.L.E. did not offer any expert testimony on his own behalf.

Based on this testimony and the documentary evidence presented, Judge Freedman found that the State demonstrated by clear and convincing evidence that J.L.E. has severe psychological problems for which he has not been able to make significant use of treatment and which causes serious difficulty in J.L.E.'s ability to control his sexually violent behavior. He found that the evidence established that J.L.E.'s severe psychological problems have "consistently existed over a long period of time" and "clearly justif[ied] the [expert] opinions" both on their own evaluation and the review of the record. Judge Freedman noted that he was satisfied "that without any question" J.L.E. is a sexually violent predator, that he suffers from "abnormality . . . in the form of a paraphilia . . . based on his record, that he has a personality disorder without any question and . . . together with the substance abuse which . . . without question predispose[es] [him] to engage in acts of sexual violence." Thus, "if he were released now," Judge Freedman concluded that J.L.E. is "highly likely without question" to engage in acts of sexual violence.

We first dispose of J.L.E.'s assertions that the SVPA is constitutionally infirm based upon double jeopardy, ex post facto, due process, and equal protection considerations. 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, and is

a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts[,] . . . the 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.

[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 there under 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) rev'd on other grounds, 183 N.J. 536 (2005); In re Commitment of P.C., 349 N.J. Super. 569, 579-80 (App. Div. 2002); In re 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), there is no violation of the United States or State Constitutions, contrary to J.L.E.'s contentions.

We also reject J.L.E.'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 Judge Freedman'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.

Finally, we address J.L.E.'s argument that the testimony of psychiatrist, Dr. Howard Gilman, was statutorily insufficient because he was not a member of his treatment team as required by N.J.S.A. 30:4-27.30b, which provides

b. A psychiatrist on the person's treatment team who has conducted a personal examination of the person as close to the court hearing date as possible, but in no event more than five calendar days prior to the court hearing, shall testify at the hearing to the clinical basis for the need for involuntary commitment as a sexually violent predator. Other members of the person's treatment team and any other witness with relevant information offered by the person or the Attorney General shall also be permitted to testify at the hearing.

Rejecting this same argument, Judge Freedman noted that the purpose of N.J.S.A. 3:4-27.30b is to assure that the person who testifies has current actual knowledge of the individual about whom he is testifying. He noted that although STU employs staff psychiatrists on treatment teams, their function is not to provide therapy, but instead proscribe and monitor medication. Recognizing this fact, he concluded, "there's really very little difference" between an on-staff and consulting non-treatment team psychiatrist.

N.J.S.A. 30:4-27.26 defines "treatment team" broadly as "the individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of sexually violent predators." We reject the idea that the possessive phrase "the person's treatment team" used in N.J.S.A. 30:4-27.30b is intended to limit the broad statutory definition under N.J.S.A. 30:4-27.26 to those "individuals, agencies or firms" assigned to a particular committee's treatment team. Rather, by definition, the statute includes those psychiatrists employed as consultants by the Division of Mental Health Services, the agency responsible for providing treatment to SVPA committees, so long as the five-day examination proscription is met. We agree with Judge Freedman's analysis. In our view, the Legislature's overriding purpose was to avoid a simple record review by requiring that a qualified psychiatrist assist the judge by testifying after conducting an up-to-date personal examination.

Affirmed.

 

(continued)

(continued)

11

A-1897-02T2

RECORD IMPOUNDED

April 24, 2006