IN THE MATTER CIVIL COMMITMENT OF M.E.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3822-01T23822-01T2

A-2144-03T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

M.E.C.

 
_____________________________________________

Submitted December 21, 2005 - Decided March 9, 2006

Before Judges Stern and Kimmelman.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-187-01.

Yvonne Smith Segars, Public Defender, attorney

for appellant M.E.C. (Lewis P. Sengstacke,

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 and Jennifer Dugan, Deputy Attorneys General,

on the brief).

PER CURIAM

M.E.C. appeals from an order entered on February 14, 2002, committing him to the Special Treatment Unit (STU) under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 et seq. He also appeals from an order of November 19, 2003, continuing the commitment. We affirm both orders.

Appellant's record included convictions for attempted aggravated sexual assault in 1988 and aggravated sexual assault in 1993. At the initial commitment proceeding, Dr. Jeffrey Singer, a clinical psychologist, testified that M.E.C.'s most recent sexual offenses were "considered an escalation in severity," and presented "an increased risk for future sexual recidivism." In addition, he testified that the fact that M.E.C. used a knife in the second offense shows that "threats and violence" is a concern. Dr. Singer also testified that the fact that the 1987 offense occurred shortly after M.E.C. was released from prison in Florida and that his 1992 offense occurred shortly after M.E.C. was released from prison for the earlier sex offense conviction "suggests a failure to learn from past experience."

Based on Dr. Singer's interview of M.E.C. and review of his record, progress notes and test results, including the "Static 99" which revealed that he "ranks in the high risk to sexually recidivate" category, Dr. Singer diagnosed M.E.C. with "paraphilia not otherwise specified." Dr. Singer also diagnosed M.E.C. with an "Axis 2 diagnosis of antisocial personality disorder" and opined that "the escalation of severity of the second sex offense supports . . . a picture of a more likely than not risk to sexually recidivate." Finally, Dr. Singer testified that appellant's "personality disorders and mental abnormalities . . . make him more likely than not to commit an act of sexual violence in the foreseeable future unless confined to a secure facility."

Dr. Charles Gnassi, a psychiatrist, also testified at the initial hearing. He evaluated M.E.C. on two separate occasions and reviewed the background reports. Dr. Gnassi testified that it is significant that M.E.C. had committed his second sexual offense while on parole from the first offense because "it means he's not learning to restrain his impulses. He acts them out even though he's been in prison . . . ." Dr. Gnassi also stated that M.E.C. is "preoccupied with sexual thoughts and feelings that he can't control," and "sees what he does in terms of forcing somebody into a sexual relationship as not being deviant" and that "[u]ntil [M.E.C.] can admit that he has a deviant problem that's repeated itself at least twice in the past and gain[s] some insight into that, he's not going to be able to change his mind about what kind of person he is, and the danger he may be to himself or to others."

Dr. Gnassi diagnosed M.E.C. with paraphilia and personality disorder not otherwise specified (NOS). He opined that "these personality disorders affect [M.E.C.'s] emotional, volitional, [and] cognitive capacity in a manner that predisposes him to commit acts of sexual violence." Furthermore, Dr. Gnassi testified that M.E.C.'s substance abuse also plays a role in his behavior. Dr. Gnassi stated that "[b]ased upon the fact that he's [sic] two offenses one after the other after being in prison suggests that he's not in control of his sexual behavior, and that he would re-offend again," and noted that there had actually "been a progression in his sexual behavior."

After hearing the testimony, Judge Philip Freedman reviewed reports from the Adult Diagnostic and Treatment Center (AD&TC), and found that M.E.C.'s criminal behavior had been "escalating," that he had "the prerequisite mental abnormality" as well as a personality disorder, and posed sufficient danger based on "a serious inability in him to control his behavior," so as to warrant commitment. In sum, Judge Freedman found "by clear and convincing evidence that [M.E.C.] is a sexually violent predator in need of involuntary civil commitment."

Judge Serena Perretti conducted the first annual review hearing. Dr. Luis Zeiguer, a psychiatrist, testified for the State after interviewing M.E.C. and reviewing the STU reports. Dr. Zeiguer concluded that M.E.C. "still suffer[s] from a mental abnormality or personality disorder which affects him either emotionally, cognitively, or volitionally so as to predispose him to commit acts of sexual violence." Dr. Zeiguer diagnosed M.E.C. with "a personality disorder with antisocial and narcissistic features" but could not make a diagnosis of antisocial personality disorder. He further diagnosed him with "paraphilia NOS." Dr. Zeiguer opined that these diagnoses predispose him to committing acts of sexual violence, and that "these disorders affect [M.E.C.] in a way so as to cause him to have a serious difficulty controlling his sexual offending behavior." Dr. Zeiguer also opined that M.E.C.'s risk of "sexually offend[ing] in the foreseeable future unless confined in a secure facility for treatment" was "very high."

The State also called Dr. Huri Amit, a psychologist and member of the Treatment, Progress & Review Committee at the STU. Amit testified that the Committee "concluded that [M.E.C.'s] progress has been insignificant and insufficient. And the factors that have contributed to his offending remain unmitigated."

Thereafter, M.E.C. called Dr. Timothy P. Foley, a licensed psychologist, to testify on his behalf. Dr. Foley testified that he reviewed the other therapists' reports and met with M.E.C. for "approximately two hours." Dr. Foley testified that he agreed with the earlier AD&TC reports that M.E.C. was "not repetitive and compulsive." He also stated that he "did not find any evidence of psychopathology," but he did "find evidence [that M.E.C. had] polysubstance dependence in remission." Dr. Foley disagreed with the "diagnosis of paraphilia NOS" despite the non-consensual nature of his sex crimes, but noted that, in any event, "there is no empirical evidence linking paraphilia NOS with any kind of criminal behavior." Dr. Foley opined that M.E.C.'s behavior was motivated by "[o]pportunism, hedonism, [and] drug and alcohol abuse," was "hedonistically driven," and criminal but not the result of a "sexual disorder."

When asked whether, in his opinion, M.E.C. suffered from "any psychopathology," Dr. Foley replied, "[h]istory of polysubstance dependence in remission in a controlled setting

. . . [t]hat's the only thing that I can find." When asked whether he believed that M.E.C. "is highly likely to commit a sexually violent act . . . within the reasonably foreseeable future as a result of a psychological disorder or a personality disorder," Dr. Foley stated that:

I don't find evidence of a mental abnormality or a personality disorder that is causally linked to future acts of sexual violence. I - I do find evidence based on the actuarial scores that individuals who scored the same way reoffend 39 percent after five years of their release, 45 percent after ten years and 52 percent after 15 years, following their release to the community.

After the hearing, Judge Perretti determined that "paraphilia NOS for non consent is, indeed, an extant diagnosis," but "that anti-social personality disorder alone is sufficient [to continue the commitment], if that predisposes the respondent to sexually violent acts." Judge Peretti noted Dr. Foley's reference to M.E.C.'s "static score of 7, which is a high risk," that he recognized "there's nothing in the treatment . . . to mitigate the risk" and acknowledged M.E.C. has a "chronic adult pattern of anti-social behavior." The judge concluded:

I am clearly convinced by this clear and convincing evidence that the respondent is a sexually violent predator suffering from adverse - abnormal mental conditions and personality disorders that predispose him to commit sexually violent acts because they diminish his cognitive, volitional and emotional capacities.

I find that he has grave difficulty controlling his sex behavior and I find that it is highly likely that he will continue to reoffend if not confined for further care and treatment.

In sum, the judge "found by clear and convincing evidence that [M.E.C.] continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment."

First, M.E.C. asserts that during his initial commitment hearing, the State's exhibits contained inadmissible hearsay. However, there was no objection to their admission.

Appellant makes a general attack on the introduction of the documents and also directs specific attacks to particular documents including those referred to by the experts in their reports. M.E.C. concedes that the admission of presentence reports into evidence at a civil commitment hearing is not a per se abuse of discretion, I/M/O the Civil Commitment of J.H.M., 367 N.J. Super. 599, 613-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). However he claims that such an admission is only appropriate where "the trial judge clearly announced that the presentence reports were not admitted as substantive evidence." Id. at 613. Furthermore, M.E.C. claims that police reports, even if contained in presentence reports, are not capable of being judicially noticed pursuant to N.J.R.E. 201. He further claims that the STU treatment notes contained inadmissible "imbedded hearsay expert opinion" in which the declarant has not testified and was not subject to cross-examination.

In addition, M.E.C. further claims that although he did not object to the admission of the State's exhibits at the initial hearing, the trial court admitted them into evidence "without limitation and relied upon them as direct evidence of the ultimate facts in dispute." Furthermore, he claims that "[t]hose documents, coupled with the testimony of Drs. Gnassi and Singer -- [] based substantially upon the same documents -- constituted the entire foundation" of the court's decision, and that the court's opinion "requires the inference that it was the court, rather than the experts, who relied on those exhibits and not for the purpose of evaluating the experts' opinions, but [] for the truth of the matters asserted therein." M.E.C., therefore, asserts that the court committed plain error.

However,

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[N.J.R.E. 703.]

This broad standard allows an expert to base an inference or opinion on facts or data which the expert "perceived or which were 'made known to him at or before the hearing,' and they need not be admissible in evidence if they are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Biunno, Current N.J. Rules of Evidence, comment (1) on N.J.R.E. 703 (2005) (citing e.g., Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991)). Although "N.J.R.E. 703 does not provide an independent basis for the admission of otherwise inadmissible hearsay[,] Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996), . . . hearsay statements relied upon by an expert generally are admissible for the limited purpose of apprising the [factfinder] of the basis of the opinion, as long as they are of a type reasonably relied upon by experts in the field." Biunno, Current N.J. Rules of Evidence, comment (7) on N.J.R.E. 703 (2005) (citing State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd on other grounds, 177 N.J. 229 (2003)). Accordingly, we have sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings. See I/M/O the Civil Commitment of G.G.N., 372 N.J. Super. 42, 55-56 (App. Div. 2004) (with respect to reference to presentence reports); I/M/O the Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005) (permitting hearsay contained in presentence reports, ADTC evaluations and an expert's opinion in affirming a commitment under the SVPA); I/M/O the Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004) (permitting reference to Special Treatment Unit reports).

In I/M/O the Civil Commitment of J.H.M. Judge King explained:

Evidentiary decisions of a trial judge are reviewed utilizing the abuse of discretion standard. While out-of-court statements used to prove the truth of the matter asserted are inadmissible hearsay, see N.J.R.E. 802, an expert who substantially relies on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information "was 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.

N.J.R.E. 703 specifically provides that facts or data "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject . . . need not be admissible in evidence." Hearsay statements upon which an expert relies are ordinarily admissible provided they are of a type reasonably relied upon by experts in the field. "However, hearsay is not admissible substantively as establishing the truth of the statement." A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition.

[367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004) (emphasis added) (internal citations omitted).]

Thus, in J.H.M., we held that the introduction of presentence reports in a civil commitment case "was proper since such evidence was of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition." Ibid. In reaching this conclusion, we looked to I/M/O the Commitment of W.Z., 173 N.J. 109 (2002), "the seminal case in New Jersey dealing with civil commitment under the SVPA." J.H.M., supra, 367 N.J. Super. at 612. We noted that W.Z. "stress[ed] the importance of an expert's evaluation of a defendant's mental condition for purposes of civil commitment under the SVPA such that a mental expert should be permitted to rely on hearsay information." Id. at 612-13 (citing W.Z., supra, 173 N.J. at 127). We also noted that the risk of an expert witness "serv[ing] as a conduit for alerting the jury to evidence it would not otherwise be permitted to hear" was not as serious in civil commitment cases, since "[t]he absence of a jury significantly reduces the risk that an expert's reliance upon the reports would be misunderstood." Id. at 613. Finally, we noted that the trial judge had "clearly announced that the presentence reports were not admissible as substantive evidence." Ibid.

This is not a case like I/M/O the Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), in which the expert testimony at the initial commitment hearing was based on the opinion of non-testifying experts. See also G.G.N., supra, 372 N.J. Super. at 59, where "the State's witnesses gave excessive weight to the original [twenty-one-year-old] crimes in finding present day likelihood to engage in acts of sexual violence" and did not adequately consider G.G.N.'s "fourteen years of positive treatment."

In In re Civil Commitment of A.E.F. we affirmed a commitment under the SVPA, holding that there was no fundamental unfairness where the two testifying psychiatrists took into account prior forensic evaluations and "offered their own opinions based on a detailed examination of A.E.F's criminal history and prior mental health evaluations, as well as their brief interviews with him." 377 N.J. Super. 473, 485 (App. Div.), certif. denied, 185 N.J. 393 (2005). This case is analogous.

While we agree with appellant that the trial judges should have noted the limited basis for admission of the documents, and their limited use of it, we are satisfied that there was no plain error. Here, Dr. Singer and Dr. Gnassi testified that the reports they used to help them prepare their own reports were the type of information relied upon by members of their profession, and they detailed their own assessments.

At the review hearing, counsel objected to the admission of P-5, the STU progress and treatment notes to "the extent that they contain . . . any psychiatric diagnoses which might be of a complex nature and would require interpretation." The court permitted counsel to call a specific concern to her attention as the report was referred to, but that did not happen.

At the review hearing, Dr. Zeiguer testified that he reviewed exhibit P-5, the STU progress and treatment notes, and other independent sources in performing his assessment of M.E.C. He further testified that the reports he used from independent sources to help him prepare his own report were the "types of documents that members of [his] profession rely upon" in performing evaluations. Dr. Zeiguer also performed an in-person evaluation of M.E.C. and conducted his own tests. Therefore, Dr. Zeiguer had other reliable reasons for formulating his diagnoses and opinions.

Finally, M.E.C. argues that:

Once the hearsay material before the court . . . is subtracted from the material before the court below, the residue of admissible evidence was so meager in both hearings that it could not possibly support a finding that M.E.C. was highly likely to sexually reoffend as the result of a mental or emotional illness or personality disorder, or that he had serious difficulty resisting the urge to offend.

We disagree.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for custody, care and treatment." W.Z., supra, 173 N.J. at 120, 132 (citing N.J.S.A. 30:4-27.26). Annual review hearings must be conducted to determine whether the person remains in need of commitment. N.J.S.A. 30:4-27.35. An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. G.G.N., supra, 372 N.J. Super. at 46-47; see also W.Z., supra, 173 N.J. at 132; I/M/O the Commitment of J.J.F., 365 N.J. Super. 486, 501 (App. Div.), certif. denied, 179 N.J. 373 (2004); N.J.S.A. 30:4-27.26 (defining "sexually violent predator"); N.J.S.A. 30:4-27.32(a).

These standards were recognized and applied in this case, and our review of the commitments pursuant SVPA is limited. See A.E.F., supra, 377 N.J. Super. at 493 (applying "clear abuse of discretion" standard). The record discloses no such abuse with respect to the order under review. Moreover, the committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference. Cf. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We are satisfied they reached the results they did in this case for the proper reasons.

Accordingly, the commitment orders under review are affirmed.

 

The offenses occurred in 1987 and 1992, respectively.

The judgment of conviction included the crime of possession of a weapon for unlawful purpose.

It appears that a hearing scheduled for February 2003 was adjourned at M.E.C.'s request or without his objection.

M.E.C.'s counsel objected to the use of reports of persons who did not testify. He did acknowledge they could be considered to the extent Dr. Zeiguer relied on them in formulating his opinion.

In his brief, M.E.C. states:

At the February 14, 2002 hearing, respondent's counsel did not object to the introduction of P-2 through 14. [] Nonetheless, the admission of P-5, P-6 (presentence reports) and P-14 (treatment progress notes) constituted plain error necessitating reversal. At the hearing[s] which took place on 10/8/03, 11/17/03 and 11/19/03 [the review hearing], respondent's counsel objected to the admission of P-5 - the treatment progress notes and group notes - "to the extent that they contain any -- any psychiatric diagnoses which might be of a complex nature and which would require interpretation."

Here, the prior criminal history was based on actual convictions (including a weapons offense) and we do not have a criminal history based on mere allegations. We recognize that the details of the crime in the presentence reports impacted on the assessment of violence, but we are satisfied that given the interviews of M.E.C. by each witness and the treatment records, the assessments of the witness would not have been materially different without them, and that in any event, the trial judges did not rely upon the facts embodied in the presentence reports as a critical basis for their determinations.

As previously noted, counsel did not object to the reference of the notes to the extent considered by Dr. Zeiguer in forming his own opinion.

(continued)

(continued)

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A-3822-01T2

RECORD IMPOUNDED

March 9, 2006