IN THE MATTER CIVIL COMMITMENT OF L.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1799-06T21799-06T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

L.S., SVP 428-06

_________________________________

 

Submitted May 19, 2008 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-428-06.

Ronald K. Chen, Public Advocate, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Appellant L.S. seeks review of an order the Law Division entered on August 3, 2006, directing his civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). The order followed a hearing at which two unrebutted mental health experts testified that appellant, who had just completed his prison terms for two violent sexual offenses, met the criteria for commitment under the SVPA. We affirm.

The two sexual offenses that led to appellant's incarceration and his present civil commitment were rather close in time and similar in nature. Both crimes involved appellant taking an adult female victim to an isolated area by a waterfront, and then forcing her to have vaginal and oral sex.

The record indicates that the first offense occurred in Elizabeth on or about June 17, 1988. On that date, appellant encountered a twenty-one-year-old woman, V.P., when she was riding her bicycle. He went down to the waterfront with her. After drinking a few beers, appellant began to tear V.P.'s clothes off. When she resisted, he punched her in the head. He then forced V.P. to have vaginal sex and perform fellatio upon him. Appellant then pedaled away on the victim's bicycle. She fled the scene and was taken by passing motorists to a nearby hospital.

Appellant was subsequently arrested and charged with second-degree sexual assault and robbery. In September 1989, he pled guilty to both offenses. The criminal judge sentenced him in February 1990 to ten years in prison on the sexual assault, plus a concurrent seven-year term on the robbery.

While appellant was out on bail on the indictment involving V.P., he committed another brutal sex crime with a second female victim, B.W., on or about April 5, 1989. On that occasion, appellant met B.W., who was then age thirty-five, at an after-hours bar. He then took B.W. down to the waterfront at about 5:30 a.m. Once there, appellant raped her vaginally and orally. He then pulled out a kitchen knife and began to stab B.W. repeatedly in her legs, back and chest. The record indicates that she was stabbed more than fifty times, although the exact count is uncertain. She pretended that she was unconscious. At that point, appellant left. B.W. crawled to her brother's house, and was taken by ambulance to a hospital, where she remained for a week.

Appellant was arrested for the attack on B.W. one month later. He was indicted for attempted murder, aggravated sexual assault, aggravated assault, and the possession of a weapon for an unlawful purpose. He pled guilty to these charges, and received a twenty-year prison sentence on the attempted murder and a concurrent fifteen-year term on the aggravated sexual assault. The other crimes merged.

Shortly before appellant reached his parole date, the State filed a petition in April 2006 to have him civilly committed under the SVPA. The petition was accompanied by two clinical certificates from psychiatrists, who attested that appellant is a sexually violent predator in need of confinement. Based on this showing of probable cause, appellant was temporarily committed to the Special Treatment Unit ("STU") pending a hearing.

The hearing was conducted before Judge Serena Perretti on August 2 and 3, 2006. The State presented testimony from two mental health experts: Evan Feibusch, M.D., a psychiatrist, and Natalie Barone, Psy.D., a psychologist. Both doctors had attempted to examine appellant, but he refused to cooperate with them. From their review of the pertinent records, Doctors Feibusch and Barone each concluded that appellant suffers from a mental abnormality that makes him highly likely to commit more acts of sexual violence if he is not kept in a secure facility. Appellant did not testify at the hearing or produce any competing expert.

In her bench opinion at the end of the hearing, Judge Perretti summarized the testimony of Dr. Feibusch as follows:

Dr. [Feibusch] diagnosed [L.S. with] paraphilia NOS, not otherwise specified, nonconsenting type, alcohol abuse and personality disorder, not otherwise specified, with antisocial traits. . . .

He bases the diagnosis on [L.S.'s] criminal history, which demonstrates a conspicuous lack of regard for the rights of others. There can be no question about that.

The definition of the diagnosis is contained in the doctor's report, together with statements of the basis for each diagnosis. According to the testimony, [L.S.] is predisposed to commit sexually violent acts because of his paraphilia coupled with his personality trait for lacking regard for the rights of others. [Dr. Feibusch] finds that the personality disorder is associated with [L.S.'s] sexual offending. And it, as well as the paraphilia, effects [L.S.'s] volitional, emotional and cognitive capacities. It is his opinion that [L.S.] is highly likely -- as a result of the conditions that he diagnoses and [L.S.'s] demonstrated inability to control his sexually violent acts to be highly likely to recidivate.

Dr. Feibusch, who was not asked any questions on cross-examination by defense counsel, found it especially significant that appellant committed a second sexual offense while he was on bail for the sexual attack on V.P. The judge recounted the doctor's testimony:

Attention was called [by Dr. Feibusch] to the fact that when [L.S.] committed the offense against V.P., he was on bail for some other charge. When he committed the crime against B.W., he was on bail for the offense against V.P. According to the psychiatrist, this demonstrates [L.S.'s] inability to control his sexually violent behavior. In addition, the number of stab sounds, whether 50 or 24, speaks to the degree of violence which accompanied the sex act.

Judge Perretti likewise canvassed the testimony of Dr. Barone, the psychologist:

[Dr. Barone] accepts that there were 58 stab wounds [of B.W.] However, in her testimony she states that the number of stab wounds would make no appreciable difference to her insofar as the stab wounds form part of the basis for her diagnoses. She considered the location of the wounds as most important, pointing out that [L.S.] began with a series of stab wounds against the legs of the victim, B.W., indicating to the psychologist[] that it was [L.S.'s] attempt to torture his victim. This could be seen as either torture leading up to murder or torture for its own sake.

The offense was committed while on bail, indicating [L.S.'s] inability to control his sexually sadistic impulses which, according to the psychologist, he cannot resist. In addition to the diagnosis of sexual sadism, which she discusses at length in her report, she diagnoses paraphilia NOS for nonconsent and antisocial personality disorder, severe, including psychopathic traits.

Additionally, Judge Perretti noted Dr. Barone's findings about appellant's traits of sexual sadism, and other pertinent risk factors:

The basis for [Dr. Barone's] diagnosis of sexual sadism was said by her in her testimony to be based on the predicate offense primarily. However[,] the predicate offense alone would be, according to her, insufficient to make that diagnosis. She defines sexual sadism as obtaining sexual satisfaction from the sexual degradation and pain inflicted upon the other. She notes that the offense against V.P. involved a level of brutality which was unnecessary to the offense. She relies on V.P.'s description of [L.S.'s] rage and ripping her clothing from her and punching her. [L.S.] himself admitted that he punched her in the stomach.

A year later he commits the extraordinar[ily] violent[,] bloody crime against B.W., thus satisfying the requirement that the sadistic practice continued over a period of time. It is also the doctor's opinion that [L.S.'s] choice to torture B.W. must have been the result of sadism. She notes that during the year between the crime against V.P. and the crime against B.W., [L.S.'s] violence had escalated.

. . . Further in her report, Dr. [Barone] discusses the manner in which she arrives at her evaluation of the level of risk presented by [L.S.] She begins using the Static 99 actuarial instrument, which resulted in a score placing [L.S.] in a high risk category of offenders. Thereupon she looks for dynamic factors which are statistically associated with high risk recidivism rates for sex offenders.

In particular, Dr. Barone identified three such "dynamic factors":

She first considers that [L.S.] is a sexual sadist who eroticizes his aggression, taking sexual pleasure in the torment, anguish, distress, helplessness, and suffering of the victim. A second dynamic factor which elevates the level of risk is the early onset of the respondent's sexually violent behavior. He was 19 years of age when he committed his first known rape against V.P.

A third matter considered when evaluating the level of risk is what Dr. Barone observes as a certain compulsivity demonstrated by [L.S.'s] sex offending on the two occasions resulting in conviction while he knew he was being watched by law enforcement and, in the second offense, even while awaiting sentence. A further aggravating factor which elevates the risk is [L.S.'s] personality disorder, which, according to [Dr. Barone's] report, has been found to be related to higher levels of risk for sexual recidivism.

[L.S.'s] aggressive tendencies are noted, not only in connection with the two sex offenses, but also in his record of charges of simple assault, as well as a juvenile charge of causing bodily injury. [Dr. Barone] reports that research has shown that a propensity toward violence is related to sexual recidivism.

Relying upon this expert testimony, Judge Perretti was persuaded that appellant poses a high risk of reoffending:

These dynamic factors can be seen to adhere to [L.S.] individually and are totally consistent with the actuarial result placing [L.S.] in a high risk category and can clearly be seen as elevating the risk to the very highest level. The nature of [L.S.'s] offending is so extraordinarily dangerous that the level of risk he presents is raised exponentially. This is a respondent who intends to kill in connection with violent rape.

He is clearly a sexual sadist. And the record is more than adequate support for that diagnosis.

Dr. [Barone] sees [L.S.] as being predisposed to commit sexual offenses of a violent nature as a result of the conditions that she diagnoses. They impact his cognitive, volitional and emotional capacities.

After considering all of these proofs, Judge Perretti rendered the following conclusions:

The diagnoses proffered by the two [expert] witnesses are not contradicted. It is clear beyond debate that [L.S.] has twice been convicted of sexually violent offenses, the second involving not only a first-degree rape, but also an attempt to murder. It is also clear and convincing that [L.S.] suffers from abnormal mental conditions and personality disorders that adversely impact his emotional, cognitive and volitional capacities so as to predispose him to commit sexually violent acts.

Based on clear and convincing evidence, it is found that [L.S.] is a sexual sadist. In addition, he suffers from a sexual deviance which is a paraphilia for forced sexual intercourse. In addition, it is specifically found that [L.S.] suffers from a personality disorder which includes antisocial traits.

. . . .

Whether this is a personality disorder NOS or a personality disorder antisocial is not necessary to decide[,] inasmuch as the characteristics of the disorder are identical. Both Dr. [Feibusch] and Dr. [Barone] agree as to the characteristics[,] [a]lthough, their diagnos[es] differ[] in verbiage.

It is clear that [L.S.] lacks all control of his sexually violent behavior. His record of sexually violent behavior while on bail and further while on bail for prior sexual violence clearly establishes that he has no control.

[L.S.], by clear and convincing evidence, is a sexually violent predator. By clear and convincing evidence, he has serious difficulty controlling his sex offending behavior of a violent nature. And by clear and convincing evidence, he is highly likely to commit sexually violent acts in the future if not confined for care and for the protection of the public.

This is an exceedingly dangerous sexually violent predator. There will be a one year review.

[Emphasis added.]

Consistent with these findings, the court entered a final order on August 3, 2006, maintaining appellant's commitment under the SVPA, subject to a further review of his status in one year.

On appeal, appellant raises two points:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT L.S. WAS SUBJECT TO SVP COMMITMENT

POINT II

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL (Not Raised Below)

It is well established that under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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.

A mental abnormality, as defined by the statute, 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." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). 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. Ibid.

The State must prove at the commitment hearing that the respondent poses:

a 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.

[Id. at 132.]

The court must address the offender's "serious difficulty with control over dangerous sexual behavior," and the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; see also N.J.S.A. 30:4-27.32(a); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

After an SVPA offender has been initially committed, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The committed person may petition for discharge at any time. N.J.S.A. 30:4-27.36(d). The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). "Once committed under the SVPA, an individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." W.Z., supra, 173 N.J. at 130; see also In re Civil Commitment of E.D., 183 N.J. 536, 540 (2005) (reaffirming the "highly likely to reoffend" standard for SVPA commitment and re-commitment), writ of habeas corpus dismissed sub nom. Dollar v. Rogers, Civil No. 05-5594, 2 007 U.S. Dist. LEXIS 75321 (D.N.J. Oct. 9, 2007).

Our scope of appellate review of judgments of civil commitment is exceedingly narrow. "We only can reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have also recognized that "committing judges under the SVPA are specialists in the area, and we must give their expertise in the subject special deference." T.J.N., supra, 390 N.J. Super. at 226. An appellate court should give the "utmost deference" to the reviewing judge's determination of the appropriate balancing of societal interests and individual liberty. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "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).

Here, Judge Perretti's conclusion that L.S. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132. There was no "clear abuse of discretion" in extending the commitment. J.P., supra, 339 N.J. Super. at 459. Nor did the judge deviate from the controlling legal principles under the SVPA.

The brutal nature of appellant's two predicate sexual offenses, and the unrefuted expert clinical assessments of Dr. Feibusch and Dr. Barone about his current status, absolutely warrant his SVPA commitment. We reject appellant's claim that his past acts of sexual violence are too dated to be significant. Appellant is only forty years old, and there is nothing in the record that suggests that he is no longer inclined or capable of attacking other female victims.

We also reject appellant's claim, which he did not raise below, contending that the State's experts and the judge improperly relied upon the opinions of non-testifying doctors and other hearsay contained in the records admitted into evidence. The record clearly shows that those background documents and assessments were only considered to the extent that they helped inform the experts' overall opinions, as items reasonably relied upon by others in their field. See N.J.R.E. 703; In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). The same is true of the recorded facts underlying appellant's convictions. J.H.M., supra, 367 N.J. Super. at 613. There was no error, much less plain error, in how the experts and the court used this information.

In sum, we affirm the commitment order of August 3, 2006, substantially for the reasons expressed by Judge Perretti in her well-reasoned bench decision.

Affirmed.

 

Dr. Feibusch was not one of the two psychiatrists who filed the initial clinical certificates.

The record does not indicate whether that one year review took place in August 2007, or whether it was deferred while the present appeal was pending.

(continued)

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A-1799-06T2

RECORD IMPOUNDED

June 02, 2008