IN THE MATTER CIVIL COMMITMENT OF D.M.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3896-03T23896-03T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF D.M.B.

_______________________________________

 

Submitted January 30, 2006 - Decided February 15, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-337-03.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Frank A. Coppa and Mary Beth Wood, Deputy Attorneys General, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

D.M.B. appeals from a judgment entered on March 8, 2004 pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, committing him to the Special Treatment Unit (STU) for custody, care and treatment. We affirm.

I.

We briefly summarize the evidence relevant to our consideration of this appeal, based upon the testimony presented at trial. On July 15, 1994, D.M.B. knocked on the door of B.G.'s apartment and asked if he could use the bathroom. B.G. knew D.M.B. and let him in. Once inside, D.M.B. wrapped a sock around B.G.'s throat. He choked B.G., threw her to the floor, ordered her to remove her clothing or be killed, and raped her. On June 23, 1995, D.M.B. pled guilty to first-degree sexual assault and first-degree attempted murder. D.M.B. was sentenced to fifteen years on each count, to run concurrently.

D.M.B. was scheduled for release from prison on October 1, 2003. The State filed a petition on September 24, 2003 seeking D.M.B.'s commitment pursuant to the SVPA. The court entered an order on October 1, 2003, temporarily committing D.M.B. to the STU pending a final hearing. The hearing was held on January 20, 2004 and March 8, 2004.

The State presented testimony from Natalie Barone, Psy.D., who is a psychologist at the STU. Barone testified that she "extended" an "invitation" to D.M.B. for an interview but he declined. Consequently, Barone performed her evaluation based on reports of previous psychological and psychiatric evaluations, the pre-sentencing report, the transcripts of certain court proceedings and certain voluntary statements. Barone testified that experts performing psychological evaluations customarily rely upon such documents because they provide "information necessary to conduct the risk assessment from a clinical, dynamic perspective as well as an actuarial perspective, which we know are the two main ingredients for these risk evaluations."

One of the documents relied upon by Barone was a report dated August 1, 1995 of an evaluation performed by Mark Frank, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey. Frank interviewed D.M.B. and D.M.B. conceded that he raped and attempted to kill B.G. on July 15, 1994. D.M.B. told Frank that he was drunk at the time and he assaulted the victim because of certain "auditory command hallucinations" that he attributed to his deceased cousin.

Frank noted that a pre-sentence investigation report indicated that the offense committed on July 15, 1994 was D.M.B.'s fifth arrest but his first conviction of an offense of a sexual nature. In December 1990, D.M.B. was arrested and charged with sexual assault. The charge was "no billed." According to Frank's report, the victim was an 18-year old woman with whom D.M.B. was acquainted. D.M.B. asked to use her bathroom and, when she agreed, he grabbed her around the neck, forced her to masturbate him and submit to vaginal intercourse. Frank wrote that, in the interview, D.M.B. admitted committing the crime but he denied hitting the victim.

In May 1991, D.M.B. was arrested and charged with sexual assault and possession of a weapon. These charges also were "no billed." Frank's report states that the victim was a 20-year old woman, who said that D.M.B. grabbed her from behind, put a knife to her neck and ordered her to take off her clothes. When she tried to escape, D.M.B. punched her in the mouth. D.M.B. forced the victim to perform fellatio and submit to vaginal intercourse. According to Frank, D.M.B. said that he had no memory of committing the crime.

D.M.B. was arrested in February 1994 and charged with criminal sexual contact. He was ordered to pay a $175 fine. The victim was a 20-year old woman who claimed that D.M.B. fondled her buttocks and asked her to have sex with him. Frank wrote that D.M.B. admitted the offense. He said that he had been drinking before he committed the offense.

D.M.B. also was arrested in March 1994 on a charge of aggravated sexual assault. The charge was "no billed." The victim was a 20-year old woman, who was the mother of D.M.B.'s child. The victim said that D.M.B. removed her clothes and when she resisted, he punched her "about the body" and forced her to have vaginal and anal intercourse. D.M.B. denied committing this offense.

D.M.B. also was arrested on charges that were not sexual in nature. In August 1991, D.M.B. was arrested on a robbery charge that was dismissed. He was arrested in December 1992 for intimidation, a charge that also was dismissed. In addition, D.M.B. was arrested for obstructing the administration of the law in December 1993 and he was fined $280.

In her report, Barone found that D.M.B. was suffering from paraphilia not otherwise specified (NOS) and personality disorder NOS with anti-social features. She found that both conditions affected D.M.B.'s emotional, volitional and behavioral capacity and predisposed him to commit sexually violent offenses. Barone further opined that D.M.B. is "highly likely" to engage in future acts of "deviant sexual behavior" if he is released into the community.

Barone testified that, in making a risk assessment evaluation, she employed the Static-99, which she described as an "actuarial instrument" that is designed to estimate the risk of sexual recidivism. She then considers the "dynamic factors" and certain other "related characteristics." D.M.B. scored a "six" on the Static-99, which placed him in the "high risk category."

Barone explained that a diagnosis of paraphilia NOS is a diagnosis of someone having a "sexual pathology." Barone's diagnosis was based on D.M.B.'s "apparent sexual arousal" when forcing non-consenting individuals to have sexual relations. Barone also testified that her diagnosis of polysubstance abuse in institutional remission was supported by D.M.B.'s acknowledgement that he had a substantial problem with alcohol. Barone said that, in D.M.B.'s case, this was a risk factor because substance abuse makes an individual feel more comfortable when committing sex crimes.

Barone additionally testified about her diagnosis of personality disorder NOS with anti-social features. She described this disorder as a "pervasive maladaptive pattern of functioning in the world." She stated that D.M.B.'s personality structure is characterized by, among other things, a lack of remorse, impulsivity and aggressiveness. D.M.B.'s mental condition predisposed him to commit sexual offenses. She testified:

[I]t's really the confluence of all the variables that I've gone over....[H]e has the sexual pathology in place, he has a diagnosable paraphilia. On top of that he has the personality structure that drives the sexual pathology....[M]ost people have a certain level of remorse and empathy...for other human beings that prevent[s] them from acting on these types of sexual impulses. [D.M.B.], however, just has utter disregard for society, societal norms and the rights of other people and so he feels quite comfortable acting on his sexually violent fantasies. Also,...his psychotic disorder plays a role in all of this. When someone...experiences a psychotic break they lose all emotional control and cognitive controls and so that...serves to further increase his risk for actually going out and acting upon his sexually deviant arousal pattern.

Barone opined that there was a high risk that D.M.B. would commit sexual offenses if released in his current condition.

Charles P. Gnassi, M.D., a psychiatrist at the STU, also testified for the State. Gnassi evaluated D.M.B. on October 14, 2003 and prepared a report concerning his evaluation. He diagnosed D.M.B. as having paraphilia NOS, anti-social personality disorder with narcissistic features and certain social stressors including anti-social personality traits, repeated sexual offenses, a history of substance abuse and relatively unstable adult relationships. In his report, Gnassi wrote that D.M.B. "has a mental abnormality that puts him at high risk to re-offend." Gnassi opined to a reasonable degree of medical certainty, that D.M.B. remains a sexually violent predator who requires commitment at the STU for care and treatment.

Gnassi testified that his diagnosis of paraphilia NOS was based on the repetitive pattern of D.M.B.'s sex crimes. Gnassi stated that D.M.B. has low self esteem, which indicates that he is more likely to repeat the offenses. The doctor noted that D.M.B. had a long history of substance abuse. He was drinking alcoholic beverages when he was 13 years of age. D.M.B. began to use marijuana when he was "around 15 or 16" and used cocaine for a period of time. D.M.B. had a past history of psychosis induced by these substances. Gnassi stated that, while substance abuse does not make a person commit a particular type of offense, substance abuse can lower an individual's "frustration" and, because of "poor judgment," the person can re-offend.

Gnassi explained his diagnosis of anti-social personality disorder with narcissistic features. Gnassi asserted that, when he was a young man, D.M.B. had trouble in school, was using drugs and would curse at the teachers. The sexual offenses indicate that D.M.B. is callous but does not realize this. According to Gnassi, D.M.B. knows what he did was wrong but he has not "come to terms with it at this point."

Gnassi was asked whether the treatment that D.M.B. had received "mitigated the underlying risk factors for sexually re-offending." He responded that it did not. Gnassi asserted that, based on the records he had reviewed, and other information he had received, D.M.B. was essentially "an untreated sex offender." Gnassi concluded that D.M.B. suffered from a mental abnormality or personality disorder that predisposes him to commit sexually violent offenses and he is in need of civil commitment to the STU.

D.M.B. presented testimony from Daniel P. Greenfield, M.D., M.P.H., M.S., who is a forensic psychiatrist. Greenfield met with D.M.B. on three occasions and also met with D.M.B.'s brother. Greenfield prepared a report, in which he diagnosed D.M.B. with drug-related psychosis, polysubstance dependence in institutional remission, dysthymic disorder and anti-social personality disorder. The doctor opined that D.M.B. was not in need of civil commitment under the SVPA.

Greenfield found that that D.M.B. was not "highly likely" to act out and re-offend in the reasonably foreseeable future. In his report, Greenfield wrote:

[D.M.B.]'s offenses occurred when he was a younger man, over a period of several years sequentially, so that the pattern of sexually offensive behaviors in which he had engaged during that time has been interrupted by his long period of incarceration. In that sense, again, he has become "unaccustomed" to such behaviors, which as a risk factor for future such behaviors reduces the likelihood of these behaviors.

In the report, Greenfield also addressed the question of whether D.M.B. would pose a threat to the community if he were released. Greenfield said that it was impossible to predict the future with 100% accuracy. He wrote, however, that D.M.B. was not "highly likely" to pose a threat to the community through sexually violent behavior if released.

In his testimony, Greenfield explained that he did not diagnose paraphilia or paraphilia NOS because he did not find those characterizations as "satisfactory" diagnostic criteria. He also found that D.M.B. did not suffer from any form of sexual deviancy. Greenfield diagnosed dysthymia, which he described as a chronic and pervasive depressive condition. Greenfield said that he was not aware of any studies that associated dysthymia with sex offenses. The doctor said that the records indicated that D.M.B. suffered from a psychosis. He opined, however, that there was no per se connection between psychosis and sexually offending behavior. Greenfield stated:

Well, [D.M.B.] at this point...is symptom free, is not psychotic, would not warrant a chronic psychotic level disorder and therefore there's no reason to expect that command hallucinations that he has had in the past would recur and order him to commit sex offenses; he's not psychotic anymore.

Greenfield also explained why he did not diagnose D.M.B. with sexual sadism. He said that such a diagnosis requires that the individual have "some sort of benefit or enjoyment" from the sexual activities. Greenfield added that he found no evidence that D.M.B. enjoyed fantasizing about "potentially sexually sadistic behaviors or activities." Greenfield asserted that he made a diagnosis of polysubstance dependence but he found no direct relationship between substance abuse problems and "sexual problems."

In addition, Greenfield retracted the finding in his report that D.M.B. has an anti-social personality disorder and said that he did not believe D.M.B. satisfies the diagnostic criteria for a personality disorder. Because he did not have such a disorder "to begin with," it could not predispose D.M.B. to do anything.

At the close of the evidentiary portion of the trial, and after counsel made their closing arguments, Judge Serena Perretti ruled from the bench. The judge found that the testimony of Barone and Gnassi was more persuasive than Greenfield's. The judge stated:

Dr. Greenfield interviewed [D.M.B.] at very great length. Initially he diagnosed drug related psychosis by history, polysubstance dependence in institutional remission by history, alcohol, cocaine and marijuana, dysthymic disorder, which is a depression. He did not state it is not my opinion that a paraphiliac diagnostic designation applies to [D.M.B.] and he initially diagnosed

antisocial personality disorder in institutional remission.

Dr. Greenfield doesn't tell us what made the antisocial disorder go away and he doesn't tell us what made the drug related psychosis go away or what made the polysubstance dependence go away, but he says that by reason of having been in custody for a number of years, [D.M.B.] just got out of the habit, these things weren't reinforced and therefore with disuse they went away. [Dr. Greenfield] doesn't say how we can attribute that to [D.M.B.].

. . . .

I cannot believe that putting him in jail cured him and no specific reason attributable to [D.M.B.] was offered by Dr. Greenfield, just that it went away.

[The doctor] changed his mind about the antisocial personality disorder because upon rethinking the situation he became convinced that the juvenile behavior wasn't bad enough to rise to the level of conduct disorder prior to age 15.

It seemed to be a pretty replete conduct of conduct disorder to me, aggressive behavior, drinking from age 13, early use of marijuana. Dr. Greenfield says well...others were doing it, so that's me-tooism. Not everybody starts the regular use of alcohol at age 13.

So I...cannot be persuaded by Dr. Greenfield's evaluation, nor am I persuaded by him when he now says that there is no personality disorder at all. That was something not explained.

The judge found that D.M.B. had engaged in "grotesque acts of violent sex" in at least two cases, which had been acknowledged by D.M.B. She concluded that there was clear and convincing evidence that D.M.B. was a sexually violent predator subject to commitment under the SVPA. The judge entered the order requiring D.M.B.'s commitment at the STU and this appeal followed.

II.

D.M.B. raises the following points for our consideration:

POINT ONE: THE HEARING COURT'S COMMITMENT OF D.M.B. UNDER THE SVPA VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION BECAUSE D.M.B.'S ADDITIONAL CONFINEMENT WAS THE RESULT OF THE STATE'S DELIBERATE AND UNJUSTIFIED DELAY IN SEEKING D.M.B.'S COMMITMENT UNTIL THE END OF HIS CRIMINAL SENTENCE, DESPITE A PRIOR ADTC EVALUATION WHICH INDICATED THAT D.M.B. WAS ELIGIBLE FOR SENTENCING UNDER THE NJ SEX OFFENDER ACT. (NOT RAISED BELOW).

POINT TWO: IN ITS COMMITMENT OF D.M.B. AS A SEXUALLY VIOLENT PREDATOR, THE HEARING COURT COMMITTED REVERSIBLE ERROR BY RELYING PRIMARILY ON D.M.B.'S HISTORY OF SEXUAL OFFENSES; BY RELYING HEAVILY ON HEARSAY THAT VIOLATED N.J.R.E. 703 BECAUSE THE COURT'S RELIANCE INFRINGED ON D.M.B.'S RIGHT TO CROSS EXAMINATION; INFRINGED ON D.M.B.'S RIGHT TO DUE PROCESS; AND BECAUSE ITS DECISION LACKED CLEAR AND CONVINCING PROOF OF A PRESENT SEXUAL ABNORMALITY (NOT RAISED BELOW).

D.M.B. has filed a supplemental pro se brief in which he raises the following additional arguments:

POINT THREE: FEDERAL AND STATE CONSTITUTION REQUIRE DUE PROCESS SAFEGUARDS GUARANTEED BY FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ART. I. PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION (NOT RAISED BELOW).

POINT FOUR: THE SVPA STATUTE WAS UNCONSTITUTIONAL AS APPLIED TO D.M.B. AND TRANSFERRING HIM TO THE SPECIAL TREATMENT UNIT WITHOUT ADEQUATE NOTICE AND OPPORTUNITY FOR A HEARING FORECLOSED HIS LIBERTY INTEREST WITHOUT DUE PROCESS OF LAW CONTRARY TO THE FOURTEENTH AMENDMENT (NOT RAISED BELOW).

POINT FIVE: THE STATE'S PETITION FOR D.M.B.'S CIVIL COMMITMENT DUE TO PAST SEXUAL OFFENSES IS COLLATERALLY ESTOPPED THROUGH THE LEGAL DOCTRINE OF RES JUDICATA (NOT RAISED BELOW).

The scope of our review of a judgment in a commitment proceeding is "extremely narrow." In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The trial court's determination is given 'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting from In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). We have carefully considered D.M.B.'s contentions and thoroughly reviewed the record on appeal. We are convinced that D.M.B.'s arguments are entirely without merit. We therefore affirm the judgment substantially for the reasons stated by Judge Perretti in her decision placed on the record on March 8, 2004. We add the following.

The SVPA provides for the involuntary commitment of persons found to be sexually violent predators. Commitment under the SVPA is permitted if the court finds, by clear and convincing evidence, that an individual "needs continued involuntary commitment as a sexually violent predator...." N.J.S.A. 30:4-27.32(a). The judge must find that the person has been "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or ... charged with a sexually violent offense but found to be incompetent to stand trial...." N.J.S.A. 30:4-27.26.

In addition, the judge must find that the person 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." Ibid. The term "mental abnormality" is defined in the SVPA to mean "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid.

The phrase "likely to engage in acts of sexual violence" means "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid. There must be a finding that the individual has a "substantial inability to control conduct" such that it is highly likely that the individual will re-offend. In re Commitment of W.Z., 173 N.J. 109, 128 (2002); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).

We are convinced that there is ample support in the record for the judge's finding that D.M.B. is a sexually violent predator requiring commitment under the SVPA. D.M.B. does not dispute that he committed a predicate offense under N.J.S.A. 30:4-27.26, specifically the sexual assault which occurred on July 15, 1994. The testimony provided by Barone and Gnassi fully supports the judge's finding that D.M.B. suffers from a "mental abnormality or personality disorder," as those terms are defined in N.J.S.A. 30:4-27.26. In addition, Barone's and Gnassi's testimony established that "it is highly likely that [D.M.B.] will not control [his] sexually violent behavior and will re-offend." W.Z., supra, 173 N.J. at 132.

The judge's findings of fact are binding on appeal where, as in this case, the findings are supported by competent, relevant and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citing Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). We are therefore satisfied that the judge did not abuse her discretion in ordering D.M.B.'s commitment.

D.M.B. argues that the SVPA violates the ex post facto clause of the Constitution of the United States and the parallel provision of our State Constitution. We disagree. As the Supreme Court noted in Doe v. Poritz, 142 N.J. 1, 42 n.10 (1995), the state and federal prohibitions of ex post facto legislation are implicated only by legislation that imposes punishment. The Court stated in Doe:

The determination of punishment has ordinarily consisted of several components. An initial inquiry is whether the legislative intent was regulatory or punitive: if the latter, that generally is the end of the inquiry, for punishment results; if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive, usually analyzed in terms of the accepted goals of punishment, retribution and deterrence. Despite some ambivalent language, a punitive impact - one that effects retribution or accomplishes deterrence - renders the law or the specific provision of the law that is attacked, punishment, but only if the sole explanation for that impact is a punitive intent. In other words, the law is characterized as regulatory in accordance with the legislative intent even if there is some punitive impact, if that impact is simply an inevitable consequence of the regulatory provisions themselves. The law is characterized as punitive only if the punitive impact comes from aspects of the law unnecessary to accomplish its regulatory purposes - that is, if the law is "excessive," the excess consisting of provisions that cannot be justified as regulatory, that result in a punitive impact and that, therefore, can only be explained as evidencing a punitive intent.

[Id. at 46.]

The Court applied these principles in State v. Bellamy, 178 N.J. 127, 138 (2003), and held that the Legislature's intent in enacting the SVPA was regulatory. The Court found that, although commitment under the SVPA is "onerous and has some punitive impact," this is merely the "inevitable consequence of the regulatory provisions." Ibid. (quoting from Doe, supra, 142 N.J. at 46). Any punitive impact that results from confinement under the SVPA is not solely attributable to a punitive legislative intent. Ibid. Because the SVPA does not impose punishment, it does not violate the ex post facto clause of either the Federal or State Constitution. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997)(rejecting an ex post facto challenge to a substantially similar Kansas statute).

D.M.B. contends, however, that the SVPA is punitive because referrals for commitment are not made until ninety days before the defendant's "anticipated release from total confinement." N.J.S.A. 30:4-27.27(a)(1). D.M.B. argues that if the State is intent on protecting the public and providing treatment for sex offenders like himself, the State should initiate commitment proceedings and provide sex offender specific treatment during incarceration.

We disagree. In our view, the timing of commitment under the SVPA does not negate the essential regulatory aim of the law which is to protect the public from individuals whose 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. Under the SVPA, that determination is made at or about the time the sex offender is scheduled for release from "total confinement." N.J.S.A. 30:4-27(a)(1). If an offender is a sexually violent predator at or about the time of release from incarceration, the individual poses a threat to the public. The referrals for commitment under the SVPA are timed to address the danger when it is imminent. In our view, the timing of commitment under the SVPA does not turn the measure into a "mechanism for retribution or general deterrence." Hendricks, supra, 521 U.S. at 373, 117 S. Ct. at 2087, 138 L. Ed. 2d at 522 (Kennedy, J., concurring).

 
We have considered D.M.B.'s other contentions and find them not to be of sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

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A-3896-03T2

RECORD IMPOUNDED

February 15, 2006