IN THE MATTER OF THE CIVIL COMMITMENT OF L.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4701-06T24701-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF L.P. SVP-442-06

___________________________________

 

Submitted: September 10, 2008 - Decided:

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket NO. SVP-442-06.

Ronald K. Chen, Public Advocate, attorney for appellant (Richard Sparaco, 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

L.P. appeals from a judgment that determined he is a person in need of commitment as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and ordered his civil commitment to the Special Treatment Unit (STU). See N.J.S.A. 30:4-27.34(a). On appeal, L.P. presents these arguments for our consideration:

POINT I

THE APPLICABLE CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF FOR COMMITMENT UNDER THE SVPA WAS NOT MET BY THE STATE REGARDING ANY OF THE REQUIRED ELEMENTS JUSTIFYING COMMITMENT UNDER THE ACT.

POINT I(A)

EVIDENCE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT L.P. IS CURRENTLY SUFFERING FROM A MENTAL ABNORMALITY WHICH MAKES HIM HIGHLY LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE - EXPERT'S OPINION WAS BASED ALMOST ENTIRELY UPON COMPLEX DIAGNOSES OF OTHER PSYCHIATRISTS.

POINT I(B)

EVIDENCE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT L.P. IS CURRENTLY SUFFERING FROM A MENTAL ABNORMALITY WHICH MAKES HIM HIGHLY LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE - THE COURT ERRED IN ITS EVALUATION OF DR. MOSHKOVICH'S OPINION THAT THE DEFENDANT WAS NOT A HIGH RISK TO RE-OFFEND.

POINT I(C)

DEFENDANT'S COMMITMENT UNDER THE SVPA WAS ERRONEOUS WHERE THE EXPERTS RELIED SUBSTANTIALLY UPON OTHER ACTS EVIDENCE THAT RESULTED IN DISMISSALS OR NOT GUILTY VERDICTS.

POINT II

THE JUDGMENT OF THE LAW DIVISION SHOULD BE VACATED BECAUSE THERE WAS NO TESTIMONY FROM A PSYCHIATRIST ON L.P.'S TREATMENT TEAM WHO CONDUCTED A PERSONAL EXAMINATION OF THE DEFENDANT. (Not Raised Below).

Based on our review of the record and the applicable law, we affirm substantially for the reasons stated in Judge Perretti's opinion.

Following completion of a criminal sentence, the SVPA authorizes courts to order an offender's involuntary civil commitment when the State has proven "by clear and convincing evidence that the person is a sexually violent predator in need of involuntary commitment. N.J.S.A. 30:4-27.32(a). The statute defines a "sexually violent predator" as an individual who "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.

The Court has articulated the following standard for involuntary commitment under the SVPA:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

See also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A. 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002). With these principles in mind, we review the facts presented during L.P.'s civil commitment hearing.

L. P. was born on August 13, 1968, and he is now forty years old. On May 4, 1999, L.P. accepted the State's plea agreement. L.P. pled guilty to and was convicted of several charges presented in three separate indictments. On December 10, 1999, L.P. was sentenced on each conviction.

The predicate offense occurred on August 8, 1997, when L.P. extended use of his apartment to a twenty-five year old stranger, in exchange for a few dollars. After she fell asleep, L.P. entered her room, climbed on top of the woman, and choked her. He ordered her to remove her clothing and twice raped her before she was able to escape. L.P. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and was sentenced to ten years incarceration, subject to a three-year period of parole ineligibility. This sentence was also subject to community supervision for life, N.J.S.A. 2C:43-6.4.

On February 8, 1998, L.P. robbed a woman who resided in his apartment building after he struck her with a hammer. L.P. pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of a weapon (hammer), N.J.S.A. 2C:39-5(d), and was sentenced to ten years incarceration, subject to a five-year period of parole ineligibility for the robbery and a concurrent term of eighteen months for the weapons offense.

On April 14, 1998, L.P. confronted a nineteen year-old stranger. While pointing an object in her back, L.P. demanded she surrender her money and jewelry. He then forced her to a vacant lot where he raped her. L.P. pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). The sentence imposed included two ten-year concurrent terms of incarceration subject to a special five-year period of parole ineligibility, N.J.S.A. 2C:43-7.2. Additionally, L.P. was sentenced to community supervision for life.

L.P.'s prior criminal convictions included third-degree aggravated assault and third-degree possession of a weapon for an unlawful purpose, for which he was sentenced to two years probation on March 14, 1997. Five months after he was released on probation he committed the predicate offense. In addition, L.P. had two robbery convictions from New York, for which he received prison terms in 1984 and 1988. Records show L.P. violated the provisions of parole and/or absconded while paroled four times, requiring his return to prison. New York discharged him on December 17, 1993 after he completed his maximum sentence.

While incarcerated at South Woods State Prison, L.P. was charged on eight occasions for institutional infractions, five of which were downgraded or dismissed. L.P. had no disciplinary incidents since his transfer to the STU. L.P. did not receive sex offender specific treatment or substance abuse counseling.

The Honorable Richard J. Geiger entered an order for temporary civil commitment on November 3, 2006. Defendant refused to be interviewed by the State's expert, Michael R. McAllister, M.D. L.P. was evaluated prior to his transfer to the STU by Marina Moshkovich, M.D., who was employed by University Correctional Health Care, a contract provider for the Department of Corrections. L.P. presented Dr. Moshkovich as an expert witness.

At the commitment hearing, Dr. McAllister, a psychiatrist, testified that L. P. suffers from paraphilia, not otherwise specified (N.O.S.), polysubstance abuse, past history of psychotic disorder, N.O.S., and antisocial personality disorder. Dr. McAllister formulated his diagnoses based upon his review of various written materials, including case-history-type documents, which were part of L.P.'s institutional record that furnished undeniable factual background. These included: the unchallenged pre-sentence reports; victim statements; the plea transcripts; standardized testing results scored by other mental health professionals; and L.P.'s recorded comments to these experts.

Dr. McAllister acknowledged he reviewed the reports prepared by other mental health professionals who had evaluated L.P. In formulating his opinion, Dr. McAllister rejected the diagnosis of the other professionals. He explained the basis of his disagreements and testified as to how he developed his opinion.

Dr. McAllister analyzed L.P.'s patterns of reported behaviors to reach his conclusions from this documentary review. The diagnosis of paraphilia was bottomed on the two separate "convictions of engaging in forced sexual acts with women against their will." Even though the rapes occurred in close succession, Dr. McAllister opined the paraphilia diagnosis was supported by L.P.'s repeated aberrant sexual behaviors, including the repeated sexual penetrations with one victim, coupled with L.P.'s displayed pleasure during the rape described by the other. Further, Dr. McAllister reviewed police reports concerning another charged offense for sexual assault for which L.P. was acquitted. The psychiatrist confirmed, however, that had this incident not occurred, his diagnosis would remain unchanged.

Dr. McAllister concluded that the mental abnormalities, as diagnosed, personality disorder, and history of substance abuse influenced L.P.'s cognitive, emotional and volitional functioning so as to predispose him to sexual violence. Further, Dr. McAllister stated his opinion, rendered within a reasonable degree of medical certainty, as follows:

A. Let me put it this way, if I may. If we were to say that [L.P] -- just regarding [his] antisocial personality disorder, . . . with its associated impulsivity, anger and aggressiveness, violence, that he would be at extreme risk of further criminal behavior and violence. Within all of that there would be a risk of sexual offense as well. That risk would be less than the extreme risk of general criminal behavior and violence but it would still be high in my medical opinion. But [L.P.] does not only have antisocial personality disorder. He has a sexual perversion . . . wherein he not only has a history of repeated convictions for sexual offenses but wherein he has endorsed attitudes -- ideas and attitudes consistent with sexual offending and we have the descriptions by his victims of his behavior.

. . . .

A. With the combination of the antisocial personality disorder, the sexual perversion, the paraphilia that is, and the substance abuse diagnosis, it's my medical opinion that [L.P.] would be at a very high risk to sexually reoffend if he were at liberty.

L.P.'s only witness was Dr. Moshkovich, one of two psychiatrists who examined him to determine whether he was a sexually violent predator in need of involuntary commitment. Initially, Dr. Moshkovich diagnosed L.P. as suffering from an antisocial personality disorder, with the need to rule out schizoaffective disorder. She did not find support for a diagnosis of paraphilia or deviant arousal. Therefore, Dr. Moshkovich concluded L.P.'s clinical presentation did not meet the criteria for commitment, as he was not highly likely to sexually reoffend. She recommended release subject to community supervision for life monitoring requirements, participation in sex offender treatment and substance abuse counseling. Dr. Moshkovich's opinion was based on her October 29, 2006 interview with L.P., a review of L.P.'s conviction documents and treatment records, his scores on objective tests (MnSOST-R and the STATIC-99), and her discussion with a colleague, Dr. Reeves. She then released her evaluation report.

The next day, Dr. Moshkovich was called by Deputy Attorney General Mark Singer, the medical director, Dr. Kaldany, and Dr. Reeves. While going over the file during those conversations, Dr. Moshkovich realized she had "overlooked" the fact that L.P. committed the predicate offense while under probation supervision and also that he had multiple parole violations. Dr. Moshkovich interviewed L.P. a second time on November 2, 2006. Thereafter, she issued a Clinical Certificate, N.J.S.A. 30:4-27.26, recommending his civil commitment. She testified her recommendation for commitment was based on the proof supporting L.P.'s "inability to conform[,] he cannot be safely functioning in the community even with supervision." Therefore, her prior recommendation for L.P.'s release, subject to the outpatient structure of community supervision for life, was insufficient to minimize the risk he presented.

Judge Perretti's opinion reviewed Dr. Moshkovich's confusion between L.P.'s parole and probation violations. She concluded, however, that this error did not discredit Dr. Moshkovich's "clear testimony" that L.P. "suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence," if not committed. Additionally, the judge noted, "[a] sexual paraphilia is not necessarily a requisite for commitment under the S.V.P.A., which allows commitment based on personality disorder alone, given other requisites of the [s]tatute." Judge Perretti concluded:

While Dr. Moshkovich's change of mind over a four day period in which she was involved in [L.P.'s] evaluation gives the [c]ourt pause, it is insufficient to cause the [c]ourt . . . to disregard her testimony and her expressed opinion that [L.P.] should be committed and that the criteria of the [s]tatute have been met. Dr. McAllister's testimony stands uncontradicted. The evidence presented by the State was clear and convincing. The respondent has been convicted of two sexually violent offenses as defined in the Statute. He suffers from abnormal mental conditions and personality disorders that influence his cognitive, emotional and volitional functioning so as to predispose him to commit sexually violent acts. He has established that he has serious difficulty controlling his sex offending behavior. He has offended on a repetitive basis. He has offended while on probation. He has a history of repeated violations of parole. All matters tending to establish a lack of control. In addition, this is a characteristic of the antisocial personality disorder diagnosed by both psychiatrists and Dr. Moshkovich diagnoses impulse control disorder. As a result it is highly likely that the respondent will commit sexually violent offenses if not committed for care and custody. He is, by history, a person of danger to the community and continues to be such.

Our review of these findings is "extremely narrow, with the utmost deference accorded the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978); V.A., supra, 357 N.J. Super. at 63. The trial court's determination may be "modified only where the record reveals a clear abuse of discretion." V.A., supra, 357 N.J. Super. at 63 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). "The appropriate inquiry is to canvas 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 reject L.P.'s arguments advanced as contending, inter alia, that the trial court's determination was not adequately supported by clear and convincing evidence. We are satisfied the evidence, taken as a whole, provides ample support for the conclusion reached.

First, we disagree with the contention that Dr. McAllister's opinion, upon which the court relied, was based on improper hearsay. L.P. declined to participate in Dr. McAllister's evaluation. The expert reviewed the written data relating to the existence of the predicate and subsequent crimes and other conduct, clinical testing results, L.P.'s recorded statements to others, along with his recitation of his criminal conduct during the plea hearing. Although Dr. McAllister additionally reviewed the filed reports of non-testifying experts, no support exists for the contention that he parroted those opinions as his own.

Our review reveals this matter does not present an instance where "the opinions of the non-testifying experts [were] bootstrapped into evidence through the testimony of the testifying experts without an opportunity for cross-examination of the underlying opinions." In re Commitment of E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004). We determine the facts and/or data relied upon by Dr. McAllister were "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; In re E.S.T., supra, 371 N.J. Super. at 571; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) ("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."), certif. denied, 179 N.J. 312 (2004).

Moreover, we regard as disingenuous L.P.'s argument that Dr. McAllister did not base his opinion on "his own evaluation of the committee." L.P. alone controlled whether the State's expert was afforded an opportunity to examine him. His complaint in that regard is without merit. We conclude Dr. McAllister's diagnosis resulted from his independent analysis of the documentary evidence in L.P.'s file.

Second, L.P. asserts Dr. Moshkovich received pressure from other doctors and the D.A.G. to change her initial recommendation. L.P. argues "the court [] chose to ignore this obvious legal maneuvering and manipulation of its witness." Nothing supports such a conclusion. Further, the trial judge weighed the credibility of the testifying experts and concluded Dr. Moshkovich's change in position was "insufficient to cause the [c]ourt . . . to disregard her testimony and her expressed opinion."

The uncontraverted expert evidence concluded that L.P. suffers from a mental abnormality or personality disorder, which affects his ability to control his sexually harmful conduct. A finding of a total lack of control is not necessary. W.Z., supra, 173 N.J. at 126-27. Rather, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 128.

We are satisfied from our review of the record that Judge Perretti's finding that L.P. suffers from a personality disorder causing him "serious difficulty in controlling [his] harmful sexual behavior such that it is highly likely that [he] will not control his . . . sexually violent behavior and will reoffend," id. at 133, and all other criteria for SVPA commitment were well supported. Thus, we defer to those findings.

Third, L.P. contests, as error, the evidentiary rulings of the court regarding Dr. McAllister's consideration of the March 20, 1998 laundromat incident for which L.P. was acquitted. The incident was documented by a police investigatory report, which included the victim's statement of events reported immediately after the incident. The hearsay was not admitted substantively as establishing the truth of the statement, but considered by the psychiatrist in order to offer an opinion about a defendant's mental condition. See J.H.M., supra, 367 N.J. Super. at 612 (quoting State v. Eatman, 340 N.J. Super. 295, 302, (App. Div. 2001) ("'An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state.'").

The record clearly shows the trial judge did not admit the investigatory reports as substantive evidence and further, Dr. McAllister's opinion would remain unchanged were the evidence excluded. We find no grounds for reversal. J.H.M., supra, 367 N.J. Super. at 613-14.

Finally, we conclude the issues raised by L.P. in Point II are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

The Legislature amended N.J.S.A. 2C:43-6.4 in 2003, changing the title of the "special sentence" from "community supervision for life" to "parole supervision for life," and added that "[p]ersons who are serving a special sentence of parole supervision for life shall remain in the legal custody of the Commissioner of Corrections, shall be supervised by the Division of Parole of the State Parole Board, and shall be subject to the provisions and conditions set forth in [N.J.S.A. 30:4-123.51b, N.J.S.A. 30:4-123.59 to -123.63, and N.J.S.A. 30:4-123.65]."

A twenty-three year old woman alleged L.P. confronted her in a Laundromat. He grabbed her, revealed a 9 millimeter handgun tucked in his waistband and demanded her money, jewelry, cell phone, and pager. Prior to fleeing, L.P. grabbed her buttocks and breasts, attempted to kiss her mouth, and rubbed against her.

(continued)

(continued)

16

A-4701-06T2

RECORD IMPOUNDED

October 1, 2008

October 1, 2008

October 1, 2008