IN THE MATTER CIVIL COMMITMENT OF M.X.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5780-02T25780-02T2

IN THE MATTER OF THE

CIVIL COMMITMENT

OF M.X.H., SVP-295-02.

__________________________

 

Argued: January 18, 2006 - Decided March 2, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-295-02.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant M.X.H. (Yvonne Smith Segars, Public Defender, attorney; Ms. Van Pelt of counsel and on the brief).

Lisa Marie Albano, Deputy Attorney General, argued the cause for respondent State of New Jersey (Nancy Kaplen, Acting Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Albano, on the brief).

PER CURIAM

Appellant M.X.H. appeals from a judgment entered on June 18, 2003, which determined him to be a sexually violent predator in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committed him to the State of New Jersey Special Treatment Unit (STU).

The commitment proceeding was initiated on January l4, 2003, when M.X.H. was about to be released from prison for a conviction of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Appellant had been serving an eighteen-month term pursuant to a guilty plea entered on February 11, 2002. Although the offense was not a predicate offense under the SVPA, see N.J.S.A. 30:4-27.26, appellant had a long history of sexually violent offenses and other juvenile and adult criminal behavior.

M.X.H. was first arrested and charged with sodomy of a male victim on August 16, l970, which offense was no-billed in Cumberland County Superior Court. Appellant and two other males allegedly lured the victim into a dark room with the intention of mugging him. They removed his pants, but they did not take any money from him or have sex with him.

On June 26, 1971, M.X.H., who was age twenty-three, was arrested and charged with assault with intent to commit carnal abuse on a thirteen-year old girl. M.X.H. grabbed the girl and dragged her to a secluded area in the rear of a housing project. He fondled her and pulled down her panties. When the victim attempted to resist, M.X.H. punched her in the mouth, causing her to bleed. The victim kicked and struggled free. Appellant was subsequently apprehended in the bushes and was found to be intoxicated. He was committed to the Diagnostic Center Outpatient Department for psychiatric evaluation and was diagnosed with "Schizoid Personality with Dyslexia, Alcoholism, and Antisocial Adjustment." He was convicted and sentenced to a seven-year custodial term and was paroled on July 2, 1974.

On November 6, 1976, M.X.H. was arrested and charged with attempted rape and contributing to the delinquency of a sixteen-year old girl. He followed the victim as she walked down a street, grabbed her, threw her to the ground, covered her mouth with his hand and told her to "shut up [and] don't say nothing." The victim began screaming and fighting M.X.H., which caught the attention of other pedestrians who came to her aid, at which point M.X.H. fled. He was ordered to submit to a psychiatric evaluation performed at the Adult Diagnostic and Treatment Center (ADTC), and was diagnosed with "Schizoid Personality, Passive-Aggressive Personality, Borderline Mental Retardation secondary to Personality Disorder and a past history of Episodic Excessive Drinking." M.X.H. entered a guilty plea to the attempted rape charge and on April 21, 1977 was sentenced to 364 days in the Camden County jail.

On January 22, 1978, at the age of twenty-nine, M.X.H. was arrested and charged with sexual assault-carnal abuse, rape and kidnapping of a fifteen-year old girl. M.X.H. pled guilty to the lesser charge of carnal abuse and was sentenced to a seven-year term in state prison, and was paroled on February 16, 1982. In his September l5, 1978 Statement of Reasons for Sentencing, Judge I.V. DiMartino noted his concern with the findings of the ADTC that appellant did not fall within the purview of the Sex Offender Act and his reluctance to accept the lenient plea bargain offered by the State:

It is difficult to understand why the diagnostic center found he was not a repetitive sex offender when he has sexual offenses in his background. Nevertheless in view of their findings this court has no other alternative than to treat him and sentence him as a criminal.

This court has been concerned not only about the report of the diagnostic center but has also been concerned with the apparent leniency of the sentence which was recommended by the prosecutor. The prosecutor permitted this defendant to plea to the lesser charge of Carnal Abuse. The official version which is recited in the probation report states that on January 22, 1978 the [fifteen-year-old] victim reported to the Camden city police department that . . . she was grabbed by the neck and made to go into an alley where the defendant raped her. The only reason which I can find for accepting the prosecutor's recommendation for sentencing is that the prosecutor indicated to me that he had talked to the victim's parents and they did not want her to go through the traumatic experience of testifying in court. Because of that factor the prosecutor felt that he should offer a plea bargain which would be acceptable to the defendant. If it weren't for that factor this court would clearly reject the plea bargain because it is entirely too lenient. Because of the factors above this court will accept the plea bargain and sentence the defendant accordingly. It is hoped that the defendant will be psychologically evaluated when he reaches the state institution and the people who evaluate him will recommend and supply to him psychological therapy.

On February 24, 1985, M.X.H. was again arrested for a sexually violent offense, which conviction served as the predicate for his civil commitment. Thirty-seven-year old M.X.H. was charged with aggravated sexual assault, terroristic threats and two weapons offenses. The victim J.J., a thirteen-year old boy who had run away from home a few days before, reported that he had been sleeping in a Salvation Army box. On February 22, 1985, M.X.H. approached J.J. when he was in the box, but assured him he would not hurt him, and J.J. went to sleep. The next day, J.J. was awakened by M.X.H. climbing into the box and stepping on his leg. M.X.H. told J.J. he could be put into jail for being in the box. The boy noticed that M.X.H. had been drinking. M.X.H. then began stroking J.J.'s buttocks and removing J.J.'s pants. The victim struggled to get up, but was pushed back to the ground by M.X.H. who asked, "Why don't you give me some butt?" J.J. told him he did not engage in that type of behavior and wanted to leave.

M.X.H. then pulled out a knife and held it to J.J.'s throat, ordering him to take his pants off. When J.J. refused, M.X.H. ripped J.J.'s pants open at the zipper and pulled them down. He pushed J.J. to his knees and sodomized him by forcing his penis into the boy's anus and ejaculating. M.X.H. allowed J.J. to pull up his pants but would not allow him to leave. M.X.H. relented when J.J. offered him money, which J.J. said he kept outside his box. Once J.J. climbed out, he escaped, found an officer, reported the crime and later identified M.X.H.

M.X.H. was again evaluated at ADTC. Although the psychologist found M.X.H.'s sex offenses to be the result of "his exploitive, abusive personality style; his generally anti-social, aggressive stance; his chronic alcohol abuse; and his low level of intellectual functioning," and to be "repetitive," M.X.H. was again not found to be under the purview of the Sex Offender Act. On December l2, 1986, M.X.H. pled guilty to aggravated sexual assault and was sentenced to twenty years in state prison, with a ten-year period of parole ineligibility. He completed his sentence on January l4, 1998, six months before enactment of the SVPA.

Between his release for the predicate offense and his arrest for theft on September 5, 2001, appellant was convicted in municipal court of defiant trespassing, shoplifting, taking merchandise, lewdness, three instances of urinating in public, improper behavior, and three instances of being drunk in public.

After the temporary order for civil commitment was signed, and prior to the final hearing, M.X.H. filed a motion to dismiss the State's petition on the ground that he was not serving a sentence for a sexually violent offense at the time of the filing of the petition. The motion was denied by the court and the matter proceeded to a final hearing.

At the commitment hearing, Dr. Luis Zeiguer, a psychiatrist, testified for the State. He diagnosed fifty-five- year old M.X.H. as having "Paraphilia [NOS] . . . Learning Disabilities, Dull Normal Intellectual Function, Alcohol dependence with blackouts," and a severe anti-social personality disorder, manifested by a history of multiple sex offenses against post-pubescent boys and girls. The psychiatrist testified that the combination of his anti-social personality and the paraphilia caused M.X.H. to have a serious difficulty in controlling his sexual offending behavior because of his lack of capacity to plan, control impulses and learn from experience and because of his belief he is "omnipotent." The psychiatrist also noted M.X.H.'s impulsivity, self-centered personality and lack of empathy for other human beings. According to Dr. Zeiguer,

because of [M.X.H.'s] cognitive distortions he perceives himself as the victim of the system, he identified some of his victims only as liars, claimed not to remember ever wanting or trying to rape anyone; [and] he used self reported black outs to explain why he cannot account for his last sexual offense.

The State's expert opined there would be "a very substantial risk, a very high risk" of M.X.H. reoffending if he were released from confinement.

Dr. Natalie Barone, a clinical psychologist who testified for M.X.H., diagnosed him with alcohol abuse, marijuana abuse and anti-social personality disorder. She acknowledged he demonstrated deviant sexual behavior and recognized that M.X.H's anti-social personality disorder, combined with his alcoholism, had caused him to sexually reoffend in the past. Dr. Barone opined, however, that M.X.H.'s age had lessened his anti-social personality disorder as well as his sexual libido; therefore, he posed only a "moderate risk" of reoffending if released into the community. Significant to Dr. Barone's determination that M.X.H. had the capacity to control his sexual behavior, even while intoxicated, was his non-arrest for any sexual offenses subsequent to his release from prison in l998.

In reaching their conclusions, both experts interviewed M.X.H. They also reviewed prior psychological and psychiatric evaluations and reports pertaining to M.X.H., clinical certificates submitted in support of the State's commitment petition, and police and adult pre-sentence reports relating to M.X.H.'s convictions.

Judge Freedman considered the experts' testimony and, over the objection of appellant's counsel, exhibits that were admitted into evidence. He found more persuasive the opinion of Dr. Zeiguer that M.X.H. had a high likelihood to recidivate if he were not confined for additional treatment and care. The trial court concluded that M.X.H. was a sexually violent predator who required civil commitment under the SVPA, and entered the judgment of commitment that is the subject of this appeal.

M.X.H. presents the following arguments on appeal:

I. THE TRIAL COURT EXCEEDED ITS CONSTITUTIONAL AND STATUTORY AUTHORITY BY COMMITTING M.X.H. UNDER THE SVPA, BECAUSE M.X.H. WAS NOT SERVING A SENTENCE FOR A SEXUALLY VIOLENT OFFENSE WHEN COMMITTED AND THERE WAS NO EVIDENCE OF RECENT DANGEROUS BEHAVIOR OR THREAT.

II. THE COURT ERRED IN CONSIDERING AS SUBSTANTIVE EVIDENCE THE HEARSAY CONTAINED IN THE PROFFERED EXHIBITS AND THE TESTIMONY OF THE EXPERT WITNESS.

III. THE TRIAL COURT ERRED IN RELYING IN PART ON MATERIAL AND EXPERT OPINIONS NOT IN EVIDENCE AND NOT SUBJECT TO CROSS-EXAMINATION TO CONCLUDE THAT M.X.H. WAS A SEXUALLY VIOLENT PREDATOR THEREBY DENYING M.X.H. HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

IV. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.X.H. IS SUBJECT TO CIVIL COMMITMENT UNDER THE SVPA.

We are not persuaded by these arguments and affirm substantially for the reasons articulated by Judge Freedman in his oral opinion following the plenary hearing on June 18, 2003. We add the following comments.

The SVPA authorizes involuntary commitment of a sexually violent predator, defined as a person who has been

convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and 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.]

To commit a person as a sexually violent predator, "the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).

In In re Commitment of P.Z.H., 377 N.J. Super. 458, 459 (App. Div. 2005), we held that the SVPA does not limit the initiation of proceedings for civil commitment to persons who are completing prison sentences for a sexually violent offense. We noted that the SVPA "defines 'sexually violent predator' [under N.J.S.A. 30:4-27.26] in terms of the type of crime the person has committed, and does not limit the definition in relation to when the person committed the crime." Id. at 463. Nor does the definition of "sexually violent offense" contain any time constraints or require that the offense be the most recent offense. Ibid. Accordingly we reasoned that these provisions, when read together, "authorize the commitment of any person who has committed a sexually violent offense, without regard to when the offense was committed or whether the person is currently incarcerated for that offense." Ibid.

We further noted that the SVPA broadly authorizes the Attorney General, in exercise of the State's authority as parens patriae, to initiate commitment proceedings for "any person" who may be a sexually violent predator. N.J.S.A. 30:4-27.28d; Id. at 464. There is nothing in the statute that limits when such a court proceeding may be initiated or "suggests that the Attorney General may only seek commitment of a person who is about to be released from confinement, or that the person, if confined, must have been confined for committing a predicate offense, or that the person must have recently committed a predicate offense." Id. at 465. Regardless of the date of the last predicate act, however, in order to obtain a civil commitment, the State must prove by clear and convincing evidence that the individual currently meets the definition of a sexually violent predator and currently presents a high likelihood of committing sexually violent acts if released. Id. at 465-66.

In his brief M.X.H. raised and argued this constitutional and statutory challenge, which we subsequently addressed and rejected in P.Z.H. At oral argument, M.X.H.'s counsel changed her focus somewhat and argued that P.Z.H. was factually inapposite and urged us not to follow its holding. P.Z.H. was convicted in l965 and l975 for carnal abuse of young girls. Id. at 460. He was convicted of sexual assault of a four-year old girl, the predicate offense, and in l982 was sentenced to twenty years in prison. Ibid. He served a portion of his sentence at Avenel and was released from prison in l993. Ibid. As the SVPA had not as yet been enacted, the State could not have sought to civilly commit him upon his release. Id. at 466. In l994, P.Z.H. was convicted in municipal court of harassing three young girls and received a sixty-day term in county jail. Id. at 460. In l998, he was convicted of failing to register under Megan's Law and possession of a controlled dangerous substance, neither of which are predicate offenses under the SVPA. Ibid. The State sought to civilly commit him in 2000, when he was about to be released, resulting in an initial commitment, which he did not appeal, nor did he appeal the continuation of his commitment. Id. at 460-61. That opinion arose from P.Z.H.'s appeal of his continued commitment following his second review hearing. Id. at 458.

Appellant contends there was a fact pattern in P.Z.H. that was critical to the court's holding that is not present in the case before us and therefore its rationale does not apply here. More particularly, there were "new facts" that occurred during P.Z.H.'s most recent incarceration that demonstrated a current high risk of reoffending. P.Z.H. told a nurse at the prison "he could not wait to be released because he had an eight-year old niece who was the perfect age to sit on his lap" and he admitted to the psychologist who prepared the clinical certificate that he was a "pedophile." Id. at 460. In addition, after his release from prison for the subsequent offense, P.Z.H. engaged in conduct of a sexual nature, though not a predicate offense, by harassing three young girls. Ibid. In contrast, M.X.H. made no such admissions or presented no "new facts" upon which to base the conclusion that he currently met the definition of a sexually violent predator and currently posed a high risk of recidivating if released. Nor did he commit any sexually-related offenses subsequent to his release from prison for the predicate offense.

We believe counsel for appellant urges too narrow a construction of P.Z.H. The court's analysis is sound and the legal principle it enunciates comports with the statutory language, legislative purpose and public policy of the SVPA. We are satisfied P.Z.H. is directly on point and its holding is not fact-sensitive. Clearly an admission such as that made by P.Z.H. during a pre-commitment incarceration is a significant factor in establishing his current risk to commit another sexual offense. His conduct while at liberty after his release for the predicate offense is also a factor to be considered by the experts and the court. As noted by the court, however, P.Z.H.'s commitment was based on a panoply of factors that met the statutory and W.Z. criteria, i.e. "current as well as historical evidence . . . ." Id. at 467.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Applying this standard, we are fully satisfied that Judge Freedman's commitment decision was not based solely upon M.X.H.'s 1985 sex offense but upon an analysis of his past history and present mental condition as presented by expert testimony and documentary evidence. The court's finding that appellant qualified for SVPA commitment by clear and convincing evidence is amply supported by the record.

As previously stated, to be found a sexually violent predator under the SVPA, a person must "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined . . . ." N.J.S.A. 30:4-27.26. Under the SVPA, a mental abnormality is "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. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127. A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

We recognize that M.X.H.'s sexual offenses were committed many years ago. We are further aware that he was released from incarceration on his predicate offense in January l998, six months before enactment of the SVPA, and that he was at liberty for nearly four years before his re-incarceration in 200l for a non-sexual offense. We are also aware that M.X.H. was drinking during a portion of this time, as evidenced by his municipal court convictions, and was not arrested for any sexual offenses.

We are still satisfied that the totality of the evidence, with due deference to the trial court's "feel of the case," supports Judge Freedman's findings that appellant suffers from a mental or emotional condition that may cause him to reoffend sexually and that he is highly likely to reoffend if not confined. M.X.H. has been convicted of sexually violent offenses, all of which have been committed against minors, and his conduct has become more serious with each offense, demonstrating problems with impulse control despite arrest and conviction. Moreover, both experts agreed that M.X.H. suffers from anti-social personality disorder, deviant sexual behavior and alcohol dependency, is not remorseful or empathetic toward his victims, and has had no sex offender treatment.

Dr. Barone, however, was of the opinion that M.X.H.'s age decreased his anti-social personality disorder and sexual drive sufficiently to reduce his risk of reoffense from "high" to "moderate." Judge Freedman expressly rejected this position, stating:

So, it started out at a very high level, a 9 on the Static 99. He had other factors which increased his risk . . . in [Dr. Barone's] estimation. And yet she feels that the single factor of his age decreased it sufficiently for him not to be committable.

I don't agree with the doctor. I think she missed the boat in this particular case in this regard. I think [M.X.H.] has an anti-social personality disorder that is still alive as his record shows. That he is clearly still . . . heavily [involved] in his alcohol abuse, if not other types of abuse as well.

And when asked why a person who can get women rapes kids, . . . she attributed it to bad judgment. . . . I think she's wrong. I think he clearly has an Axis I diagnosis as indicated by Dr. Zeiguer, paraphilia of nonconsent with . . . teenagers. He's attracted to teenagers. And he doesn't groom them well and he just assaults them.

And it's true that it's been a relatively long period of time between the . . . release from his last sex offender sentence and his present sentence, but it's not that long and it's a little bit longer than periods of time between other offenses. And that at the present time, he still is a very high risk under the proper circumstances to commit another offense similar to the ones that . . . he committed in the past.

Even . . . taking Dr. Barone's point of view that he has an anti-social personality disorder and just alcohol dependence on Axis I and no paraphilia, I think he still would be a high risk. . . . I do not believe there is sufficient evidence here . . . to justify a finding that his anti-social personality disorder has decreased to the point where he would no longer be a high risk.

Judge Freedman credited the opinion expressed by the State's

expert:

I think [M.X.H.] clearly has an anti-social personality disorder and a paraphilia. . . .

I think . . . he has a paraphilia based on the nature of his victim pool and the manner in which it is spread out over a long period of time in his record. And I think Dr. Zeiguer is correct. I credit his testimony in that regard.

So, he does have a mental abnormality and a personality disorder; that . . . clearly by his record predispose him to engage in acts of sexual violence; that he has a substantial inability in controlling his behavior and he is, therefore, highly likely to engage in . . . similar act in the reasonably foreseeable future if he's released.

. . . .

What he does is very serious. I find he has a high propensity to do it . . . and that if he were released today within a reasonably short period of time he would be back committing these kinds of offenses, certainly within the reasonably foreseeable future.

And the fact that he has had a period of time without is not dispositive, given his record, his history, his continued act of involvement in alcohol . . . and his mental conditions as I've described them.

We also reject M.X.H.'s argument that the trial court improperly relied upon hearsay statements contained in documents admitted into evidence and reflected in the testimony of the State's expert as substantive evidence that the requirements for commitment under the SVPA had been established. More particularly, appellant objected to the hearsay statements contained in three adult pre-sentence reports, three ADTC pre-sentence evaluations, two psychological evaluations prepared while M.X.H. was incarcerated for theft and the two clinical certificates prepared in support of the State's petition for commitment.

N.J.R.E. 703 provides:

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 the expert 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.

[Emphasis added.]

We have previously recognized that documents containing inadmissible hearsay that expert witnesses have relied upon in forming their opinions may be admitted into evidence at a commitment hearing under the SVPA for the limited purpose of allowing the court to consider the factual materials considered by those witnesses. See, e.g., In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 484-89 (App. Div.), certif. denied,

185 N.J. 393 (2005); In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 6ll-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

A pre-sentence report may be admitted for this limited purpose, which an expert witness may rely upon "to obtain a history of what happened through the years, to see how the people involved in the offenses viewed the offenses, and to get a sense of the way [the committee] responded to these situations over time." Id. at 613. As the pre-sentence report must be provided to the defendant because he or she is entitled to "'object to any of the material statements of fact contained therein and [to] present such evidence on his [or her] own behalf as the trial judge in his [or her] discretion deems necessary to the proper resolution of the issue,'" there is a presumption of accuracy of facts contained in such report. State v. Newman, 132 N.J. 159, 171 (1993) (quoting In re D.G.W., 70 N.J. 488, 506 (1976)). Other categories of documents that may be admitted include the reports of other experts, E.S.T., supra, 371 N.J. Super. at 572-74, and STU treatment reports, In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004).

Drs. Zeiguer and Barone each reviewed M.X.H.'s pre-sentence reports, criminal history and the evaluations and reports of other experts. They also interviewed M.X.H. and reached conclusions as to whether he qualified for commitment under the SVPA. The trial judge relied on the documentary evidence not as substantive evidence but as the foundation for the opinions proffered by Drs. Zeiguer and Barone at the commitment hearing. Noting that both experts had relied on the same facts, prior criminal history, evaluations and reports, Judge Freedman found that the State's expert came to a more credible conclusion about the risk M.X.H. posed to society and detailed the reasons for his findings.

We review the evidentiary decisions of a trial judge under the abuse of discretion standard. J.H.M., supra, 367 N.J. Super. at 612. We will not disturb a trial judge's evidentiary rulings unless "there has been a clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). We discern no mistaken exercise of discretion in Judge Freedman's rulings on the admission of documentary evidence for the limited purposes that we have previously discussed or in his assessment of the evidence presented at the commitment hearing.

 
Affirmed.

N.J.S.A. 2C:47-1 to -10.

We were advised at oral argument that the Public Defender had not sought certification in the P.Z.H. case, to a large extent because of the P.Z.H.'s poor health.

(continued)

(continued)

22

A-5780-02T2

RECORD IMPOUNDED

March 2, 2006