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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6194-02T26194-02T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF F.Z.R.

(SVP-293-02)

_______________________________

 

Submitted February 14, 2006 - Decided March 6, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, SVP-293-02.

Yvonne Smith Segars, Public Defender, attorney for appellant, F.Z.R. (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent, State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel;

Jeremy S. Crawford and Mary Beth Wood, Deputy

Attorneys General, on the brief).

PER CURIAM

Appellant, F.Z.R., appeals from a judgment entered on July 8, 2003, ordering his commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that his involuntary commitment under the SVPA violates the ex post facto clauses of the federal and state constitutions, is unsupported by competent evidence, and is based on impermissible hearsay. We disagree, and affirm.

At time of commitment, F.Z.R. was forty-six years of age, with a history of criminal sexual conduct. On October 15, 1985, F.Z.R. pled guilty to third-degree criminal sexual contact involving a sixteen-year old victim. He was sentenced to 180 days in the county jail and three years probation. On May 21, 1990, F.Z.R. pled guilty to kidnapping and aggravated sexual assault of a twenty-year old mother in front of her two young children, which occurred on August 16, 1989. While released on bail and awaiting sentencing, F.Z.R. committed yet another sexually violent crime upon a fourteen-year old girl whom he stopped on her way home to ask for directions. Consequently, on November 19, 1991, F.Z.R. pled guilty to criminal restraint and criminal sexual contact, admitting that he grabbed his young victim and attempted to sexually assault her for his own sexual gratification.

At the time, F.Z.R. was found ineligible for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. However, his evaluator, Dr. Mark Frank, concluded that F.Z.R. is "a hedonistic, sensation-seeking individual with limited intellectual resources," who "lacks the cognitive abilities necessary to learn from past self-defeating behaviors," and is "motivated primarily by a desire for immediate gratification, without concern for consequences." On February 24, 1992, F.Z.R. was sentenced to an aggregate term of twenty years with a ten-year mandatory minimum parole bar.

At the time of parole eligibility, on December 16, 2002, the State filed a petition seeking the involuntary commitment of F.Z.R. pursuant to the SVPA, supported by the certification of two psychiatrists, both of whom certified that F.Z.R. suffered from a mental abnormality or personality disorder that made him likely to engage in future acts of sexual violence if not confined for further custody, care and treatment. On December 23, 2002, the court found probable cause to believe that F.Z.R. was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU.

At the final commitment hearing, Dr. Charles Gnassi, the State's psychiatric expert who interviewed F.Z.R. despite F.Z.R.'s repeated refusals to discuss the details of his offenses, diagnosed F.Z.R. with paraphilia NOS, personality disorder NOS with adult antisocial behavior, and a history of substance abuse. The paraphilia diagnosis was based on the non-consenting nature of his three offenses, his use of force on all three victims and his extreme use of intimidation on his second victim. The personality disorder diagnosis was based on F.Z.R.'s denial of any deviant sexual thoughts or feelings in the face of three admissions, a personality characteristic particularly relevant to F.Z.R.'s risk of re-offending. According to Dr. Gnassi, these diagnosed conditions cause F.Z.R. to have serious difficulty controlling his sexually violent behavior. And, based on F.Z.R.'s "history of . . . difficulty with allowing himself to be evaluated[,]" there is "a poor prognosis in terms of him following through on treatment on a[n] [out-]patient basis." In Dr. Gnassi's view, "until he admits what he did and why he did it, what led up to it, the emotions, the thoughts, the feelings, the behavior, he's not going to be able to change his way of thinking and his way of feeling internally." Thus, based on F.Z.R.'s unwillingness to cooperate in outpatient therapy, his inability to control his sexual behavior and the fact that all his offenses are sexual in nature, Dr. Gnassi concluded there is a high risk that he will re-offend unless confined.

F.Z.R. offered the expert testimony of Drs. Donna LoBiondo and Robert Carlson, a psychologist at the STU. Dr. LoBiondo diagnosed F.Z.R. with an antisocial personality disorder, which has previously predisposed F.Z.R. to sexually violent behavior. Dr. LoBiondo also conceded that F.Z.R.'s static-99 and Mn SOST scores place him in the high risk re-offender category. Dr. Carlson, to whom F.Z.R. denied even committing a sexually violent crime, diagnosed him with personality disorder NOS with antisocial traits, but conceded that if the victims' statements were true, a diagnosis of paraphilia would have to be seriously considered.

At the conclusion of the hearing, Judge Freedman concluded that the State demonstrated by clear and convincing evidence that F.Z.R. was a sexually violent predator who is highly likely to recidivate. In doing so, Judge Freedman rejected the conclusions offered by Dr. LoBiondo and Dr. Carlson that F.Z.R. only poses a moderate risk to re-offend, and instead credited Dr. Gnassi's diagnosis of paraphilia:

I find [that F.Z.R.] does in fact suffer from a mental abnormality on axis one in the form of an impulse control disorder and or a paraphilia non-consent, that he has a personality disorder, an antisocial narcissistic traits on the axis two, he's self-centered, pleasure seeking, and seems to be turned on by non-consent as Dr. Gnassi found. I credit his opinion, I accept his opinion.

Finding F.Z.R. to be "in a high level of denial with regards to his crimes, that he's attempting to put it on to drugs when in fact he does have a serious sexual problem[,]" Judge Freedman was satisfied beyond a doubt that if F.Z.R. were released he would commit a sex offense within the reasonably foreseeable future. Accordingly, Judge Freedman committed F.Z.R. to the STU, with a review hearing to be held in one year. This appeal follows.

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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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 by now well-settled that the SVPA is civil, not criminal, legislation and that commitment thereunder 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. 30:4-27.34b; In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002); 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). Inasmuch as the legislative intent underlying the SVPA remains regulatory, State v. Mumin, 361 N.J. Super. 370, 385 (App. Div. 2003), overruled o.g., State v. Bellamy, 178 N.J. 127 (2003), we find no violation of the ex post facto clauses of either the federal, U.S. Const. art. I, 10, cl. 1, or state, N.J. Const., art. IV, 7, 3, constitutions, which prohibit statutes that "either (1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925)).

We also find that Judge Freedman's findings are amply supported by the record. On this score, it is also well-settled that in reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . is extremely narrow" and the trial court's decision "should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459 (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Civil 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).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial competent credible evidence and that the admission of hearsay was not improper. As to the latter, it is clear that the use of hearsay as a basis for expert testimony and the hearing judge's evaluation of expert credibility is permissible. In re Civil Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004). In fact, some hearsay is admissible for the truth of the matter asserted, such as treatment records, under N.J.R.E. 803(c)(6). See A.X.D., supra, 370 N.J. Super. at 202 (holding "[t]he reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth"). Even a "complex diagnos[is]" contained in such reports may be "considered . . . as background in evaluating the opinions of the testifying experts, who testified that they considered these reports in reaching their own diagnos[is] . . . ." Ibid.

"[A]n expert who [relies in part or even] substantially

. . . on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information 'was of a type reasonably relied on by experts in the particular field in forming opinions . . . upon the subject.'" J.H.M., supra, 367 N.J. Super. at 612 (quoting N.J.R.E. 703); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). To be sure, "experts at the [civil commitment] hearing cannot simply parrot the findings of the doctors who author the clinical certificates . . . ." A.E.F., supra, 377 N.J. Super. at 491. However, reliance is not precluded "as long as the opinion ultimately rendered at the . . . commitment hearing is that of the [expert] witness based on his or her own evaluation of the committee, [the committee's] prior offenses, and objective test data." Id. at 492.

Here, the State's testifying expert, Dr. Gnassi, did not rely to any significant degree on the clinical evaluation of other professionals, and in fact declined to diagnose antisocial personality disorder as offered in the clinical certification. Instead, Dr. Gnassi proffered his own opinion based on a detailed examination of F.Z.R.'s criminal history, objective data from testing, and interviews he personally conducted of him. As to the latter, the fact that the committee may have willfully refused to cooperate with the State's attempts to conduct the requisite evaluation should not be used to support an argument that the statutorily-required testimony is deficient. See State v. Logan, 244 N.J. Super. 137, 140 (Law Div. 1990), aff'd, 262 N.J. Super. 128 (App. Div.), certif. denied, 133 N.J. 446 (1993); cf. Bender v. N.J. Dep't of Corr., 356 N.J. Super. 432 (App. Div. 2003). In any event, to the extent Dr. Gnassi relied on prior mental health evaluations, F.Z.R. was not prohibited from calling the doctors who issued the clinical certificates, or the doctor (Dr. Frank) who performed the ADTC evaluation. Moreover, Judge Freedman was entitled to consider such reports in the course of weighing the credibility of the testifying experts. Vandeweaghe, supra, 351 N.J. Super. at 480.

To the extent that F.Z.R.'s hearsay claim relates to information contained in documents such as presentence reports and police reports, we have consistently rejected similar challenges. E.S.T., supra, 371 N.J. Super. at 576 (citing J.H.M., supra, 367 N.J. Super. at 611-14). In J.H.M., we held "the introduction of . . . presentence reports [and other investigative materials] was proper since such evidence was of a type reasonably relied on by mental experts in formulating their evaluations of an individual's mental condition." J.H.M., supra, 367 N.J. Super. at 612. This hearsay material must not be considered substantively, "but only as a basis for the expert's opinion." E.S.T., supra, 371 N.J. Super. at 576.

In sum, we find no error in the court's evidentiary rulings which are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We are satisfied that the substantial competent credible evidence supports the court's findings and accordingly, we affirm substantially for the reasons stated by Judge Freedman in his oral opinion of July 8, 2003.

 
Affirmed.

(continued)

(continued)

11

A-6194-02T2

RECORD IMPOUNDED

March 6, 2006