IN THE MATTER OF THE CIVIL COMMITMENT OF K.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3325-07T23325-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.J.,

SVP 475-07.

________________________________________________________________

 

Submitted April 13, 2010 - Decided

Before Judges Carchman, Parrillo and

Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Docket

No. SVP-475-07.

Stefanie A. Brand, Acting Public Advocate,

attorney for appellant (Thomas G. Hand,

Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Lisa Marie

Albano, Deputy Attorney General, on the

brief).

PER CURIAM

Appellant K.J. (appellant or K.J.) appeals from his involuntary civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. In this appeal, appellant raises a number of constitutional and evidentiary arguments as well as asserting that the State failed to establish by clear and convincing evidence that he was properly classified as an SVP. We conclude that his arguments are without merit and affirm.

I.

These are the relevant facts adduced from the record. In November 1988, appellant engaged in a course of criminal behavior that formed the factual underpinnings of his later incarceration and commitment as an SVP.

On November 9, 1988, appellant attacked J.C., a forty-five year old woman in a parking lot at Upsala College. He raped the victim in a car and then demanded money, claiming a crack addiction. After driving the victim in her car for approximately five minutes, appellant exited the vehicle. That same night, appellant attacked another female victim, T.L., whom he grabbed by the neck. He attempted to pull off her clothes, but the twenty-one year old victim punched him in the face, slipped out of her coat and escaped.

Again, that same night, a sixty-year-old woman, was entering her car at Upsala College when K.J. grabbed her from behind and pulled her between two cars. The victim screamed for help, which attracted the attention of a security guard, and appellant fled the scene.

On November 15, 1988, D.K., a fifteen-year-old female was walking to a park when appellant approached her and walked with her to the park. In the park, appellant grabbed her, kissed her and picked up a piece of glass, which he used to force her on her knees. Appellant told the victim he would kill her and forced her to perform fellatio, after which he fled.

The next day, a twenty-seven year old woman, A.J., was in her apartment with her infant child when she heard a knock at the door. Appellant told her that he lived next door and had a package for her. When she opened the door, appellant pushed his way inside and held a knife over her baby, saying that if she did not shut up he would kill them both. After forcing the victim to undress and while the victim held her baby, appellant raped her. The victim reported to police that she could smell alcohol on appellant's breath.

Later in the evening of that same day, a thirty-seven year old female, S.C., was exiting her car at Upsala College when appellant pushed her back inside, telling her not to scream, and that she would be okay because he had done the same thing to another girl a couple of days before. Appellant brandished a knife and forced the victim to remove her pants. While doing so, she managed to unlock the passenger side door and fall out of the car. She ran screaming through the parking lot, and K.J. chased her for approximately thirty feet before abruptly stopping and quickly walking away. Like the prior victim, she reported that appellant had alcohol on his breath.

On November 21, 1988, the twenty-seven-year old victim, A.J., saw appellant walking by her apartment; she contacted the police, and when they arrived she identified appellant as the man who assaulted her. Appellant was arrested, and police located clothing worn during the attacks, as well as one knife.

At the time of his arrest, appellant explained that he could not remember the details of the attack against this victim and that his severe cocaine addiction had escalated in the months prior to the offense. He claimed that his addiction caused him to seek sexual intercourse and sexual contact.

With respect to this attack, appellant was indicted for: (1) first degree aggravated sexual assault and robbery; (2) second degree sexual assault and burglary; (3) third degree terroristic threats and possession of a weapon (knife) for an unlawful purpose; and (4) fourth degree unlawful possession of a weapon. Following a jury trial in December 1989, appellant was convicted. Prior to sentencing, he was examined by Mark Frank, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center (ADTC) to determine his eligibility for sentencing in accordance with the New Jersey Sex Offender Act. N.J.S.A. 2C:47-1 to -10.

Frank noted that appellant "denied any wrongdoing whatsoever with regard to" the attack. Although he admitted to previously confessing to the crime, he claimed that his confession was coerced. Throughout Frank's exam, appellant maintained his innocence, suggesting the incident was a case of mistaken identity.

Frank explained that this offense was, at the time, appellant's only known conviction of a sexual nature. However, he noted that, while in custody, additional charges had been brought against appellant, which appellant alleged was because "the authorities [were] trying to 'hit [him] with every similar crime in that area.'" During the exam, appellant admitted "that cocaine tends to make him feel sexually aroused," although he claimed he could control his feelings. However, he stated that he once came close to forcing sexual activity on a woman, but stopped himself and was not aroused by thoughts of sexual coercion.

Frank determined that:

[T]here was no evidence to be able to conclude that the present offense forms part of a repetitive, compulsive pattern of deviant sexual behavior. This offense is, in fact, the only known occasion when [K.J.] has actually engaged in such behavior. Should he be convicted of the similar pending charges, there will be a factual basis to conclude that his deviant sexual behavior is repetitive. At present, the preponderance of evidence necessary for a finding of sexual compulsion is lacking. Consequently, [K.J.] is not eligible for sentencing under the purview of the New Jersey Sex Offender Act.

Subsequently, appellant was sentenced to an aggregate term of thirty-six and one-half years in prison for the crimes involving A.J. We affirmed K.J.'s conviction but, because the trial court failed "to articulate, in detail, a basis for imposing consecutive sentences and a term of parole ineligibility with respect to the presumptive sentence," we remanded. Appellant was re-sentenced to an aggregate term of thirty-five years in prison.

In the interim, in September 1990, appellant pled guilty to: (1) first degree robbery; (2) second degree attempted aggravated sexual assault, second degree attempted sexual assault, and second degree sexual assault; (3) third degree terroristic threats and two counts of third degree possession of a weapon for an unlawful purpose; and (4) fourth degree unlawful possession of a weapon. These guilty pleas were for the other offenses that we have described.

In July 2007, appellant, who was forty-three years old, and serving his sentence at Riverfront State Prison, was evaluated by Christie L. Kokonos, Psy.D., as part of a SVP risk assessment. Kokonos concluded that although appellant did not meet the criteria for a standard mental health commitment, he nonetheless met the criteria for diagnosis as a "repetitive sex offender." She noted that, during his interview, appellant's speech was clear, and his thinking was logical. Kokonos stated that "[h]e was able to recognize his need for both continue[d] substance abuse treatment, as well as sex offender specific treatment." She concluded that "[he] does not meet the diagnostic criteria for a mental health civil commitment."

Kokonos utilized two tests to assess appellant's recidivism risk. He scored +14 on the MnSOST-R, which placed him "in the HIGH RISK category for recidivism within a sample population of sexual offenders over a six year period." On the Static 99, appellant scored +8, which similarly placed him in the high risk category, with a thirty-nine percent likelihood of reconviction in five years, forty-five percent in ten years and fifty-two percent in fifteen years.

When asked about his crimes, K.J. stated that "due to his extensive drug use at the time [] he used poor judgment . . . ." He admitted having sex with the victims but claimed a prior relationship with them. He also sought to excuse some of his conduct as related to a victim absconding with drugs and money. He later admitted that he was stressed at the time of the attacks and was coping through drug use. He stated that he usually felt angry and resentful when refused sexually but felt "powerful and emotionally relieved" during a sexual assault. Although he claimed he felt remorse and guilt following the assault, he admitted that he "cannot promise that it will not happen again." He was concerned with how to cope with life pressures on his release from prison, as well as what might happen "if those kinds of thoughts and urges come back." He expressed a desire to enter sex offender specific treatment so he could have support and someone to talk to.

K.J. also admitted that he had "deviant sexual thoughts and urges." Although he claimed this was due to drug use, he also admitted "to feeling entitled to sex and to becoming extremely angry and resentful if sex with him was declined." Appellant reported that it was possible for him to become so enraged that he would "just take it."

Kokonos found that appellant "clearly meets [the] criteria as a repetitive sex offender." Based on his admissions regarding thoughts, urges and concern about control, she concluded that he suffered "from a form of sexual psychopathology which is both repetitive and compulsive in nature." Although she found that his willingness to participate in treatment was a positive indicator for the potential success of such treatment, she determined that he met the criteria for possible SVPA civil commitment.

In October 2007, the State filed a petition to commit appellant under the SVPA. It included two clinical certifications by Neal Brandoff, D.O., and Marina Moshkovich, M.D. Brandoff had interviewed appellant, and based on appellant's difficulty controlling his sexual impulses, Brandoff concluded that there was significant risk K.J. would reoffend. During the interview, appellant denied any deviant fantasies or behaviors, but Brandoff noted that appellant had previously acknowledged concerns about controlling such thoughts or behaviors in the future. Brandoff pointed out that appellant committed five offenses within a one-month period, less than one month after he had been placed on probation for an unrelated charge of aggravated assault with a knife and was "desperate enough" to attack one victim in his own apartment complex as well as revisit the same scenes (Upsala College parking lot). On more than one occasion, appellant had used the same language with different victims.

Brandoff also was concerned with appellant's explanation that he only had two victims, and they were not really victims. Rather, they were women who supplied him with sex in exchange for drugs, and disputes arose about how much of each should be exchanged. Brandoff noted that although appellant told Frank he never forced sex on anyone, he now admitted that "in trading 'drugs for sex' he may have crossed the line of force."

Brandoff ran the same test protocol as previously administered and found that based on appellant's scores, he was in the same high risk group as that determined by Kokonos. Critically, Brandoff noted that although appellant was upset to hear of the possibility of civil commitment when he was so close to release, he had no empathy for his victims. Brandoff concluded that appellant suffered from numerous disorders, including: (1) impulse control disorder; (2) paraphilia not otherwise specified (NOS); (3) polysubstance dependence; and (4) antisocial personality disorder. He found that appellant had serious difficulty controlling his sexual impulses resulting in "significantly elevated risk that he will sexually reoffend."

Moshkovich also interviewed appellant. Based on the interview and appellant's scores on two actuarial tests, she, like Brandoff, concluded that K.J. had significant difficulty controlling his sexual impulses and was highly likely to reoffend. Her findings paralleled Brandoff's, and her conclusion was similarly consistent.

On October 19, 2007, the court found probable cause to conclude that appellant was an SVP. It temporarily committed him to the Special Treatment Unit (STU) pending a final hearing.

At the final hearing, the State presented testimony from Brian Friedman, Psy.D., and Pogos Voskanian, M.D. Appellant presented no evidence.

Friedman attempted to interview appellant on January 29, 2008, but appellant refused to be interviewed. Nonetheless, Friedman prepared an evaluation, in which he concluded, relying on reviewed records and actuarial assessments, that appellant presented a high risk of re-offense if released. He further determined that appellant suffered "from four psychiatric conditions, two of which qualify as mental abnormalities as defined by" the SVPA; appellant met the statutory criteria for civil commitment as an SVP.

Friedman explained that he relied on the original discovery material in order to understand the offenses and appellant's behavior during commission and prior reports in order to "get an idea about how [K.J.] presented to others in the past" He clarified, however, that he did not rely on the diagnoses of other evaluators. Instead, he considered them only to the extent that a prior evaluator may have reached a diagnosis he had not, in which case he would "rethink and wonder maybe why that was there" and would "take a look through to . . . [see] if there's something that maybe I was missing."

In reviewing appellant's offenses, Friedman noted that all of them "occurred within an eight-day period of time." He determined that the offenses taken together constituted a rape spree. He detailed his reasons for his conclusion including limited consideration of indictments that were dismissed as these incidents fit within the pattern of other charged offenses.

Friedman diagnosed K.J. with paraphilia NOS, non-consent, a disorder which qualifies as a mental abnormality under the SVPA. Although appellant's offenses were committed over a brief period of time, Friedman concluded that it

is incredibly obvious that [he] suffers from a deviant arousal pattern involving sexual arousal to course of sexual behavior. This is a compulsive arousal pattern as well as evidenced by offending multiple times in the same day. This escalation in a matter of a week to eventually raping a woman [] holding a crying baby at knifepoint and being able to reach the point of ejaculation in a very short period of time, according to the victim, and not experiencing that as aversive is highly suggestive of this deviant arousal pattern.

Friedman further explained that "[t]he only reason [K.J.] ceased acting on his sexually deviant behavior was criminal apprehension, and based on the level of compulsivity he displayed, it is almost certain he would have continued enacting his deviant sexual urges with non-consenting partners until he was apprehended." There was "no indication that [K.J.] decided [his behavior] was horribly wrong and he had to stop on his own." Friedman concluded that "this disorder predisposes [K.J.] toward committing a sexually violent act as defined by" the SVPA.

Expressing concern about appellant's statements that his urges may return and he may re-offend, Friedman explained that this type of paraphilia would not spontaneously disappear and required treatment.

Friedman stressed that, during the course of the three years he had been evaluating offenders, he had never seen an eight-day rape spree involving so many victims. Moreover, K.J. committed multiple assaults within one-day periods. Particularly concerning was the fact that appellant not only attempted additional assaults after failing at a first attempt, but, on one occasion, "he actually succeeded in raping somebody, and then still, after a successful assault, went after other victims." This pattern indicates that appellant "started raping and very quickly realized he really liked it. It was very reinforcing and he continued to act out on it in a rapidly accelerating fashion." "In sum, once [K.J.'s] sexual desires are triggered, there is little that will stop him." Friedman added that appellant's substance abuse and dependency would elevate appellant's risk as "excessive crack cocaine use seems to have [] served a function to lower his inhibitions and allow him to act on his urges, emboldened him to act on his urges and in some incredibly high-risk manners," including raping a neighbor in his apartment complex, where the risk of detection was high.

Finally, Friedman diagnosed appellant with personality disorder NOS with antisocial features, which qualifies as a mental abnormality under the SVPA. Friedman explained that this diagnosis refers to appellant's "pervasive pattern of disregarding the rights and well-being of others." Friedman noted appellant's history of committing property crimes, violent crimes and sexually violent crimes. Historically, appellant has demonstrated a lack of remorse for his behavior, as well as difficulty in accepting responsibility for his actions.

Moreover, Friedman pointed out that some of appellant's actions were callous and sadistic, particularly raping a woman with a crying baby. Such conduct "makes it much easier to act on deviant sexual urges because you're not constrained by a conscience telling you this is wrong, you're hurting this person." Instead, the focus is "on meeting [his] own needs in the moment." Appellant's tendency toward impulsivity and aggressiveness also suggests an inability to refrain "from acting on deviant urges."

Friedman did note that appellant's "institutional behavior was impressive." Friedman concluded that appellant's positive institutional behavior demonstrates "that in a structured setting he has . . . the ability to comport his behavior. It certainly suggests the possibility . . . that he may have learned some better impulse control over the years. He may have matured to some degree over the years. And these are all things to his credit." However, Friedman concluded that this does not mitigate his risk to the extent "that it overrides all of the other indicators that suggest high risk."

Friedman concluded that, without treatment, appellant's likelihood to sexually re-offend was high. He stated that the combination of appellant's particular arousal pattern with his disordered personality "is a very robust predictor of sexual recidivism risk." Friedman summed up: "[I]n the end, all the indicators are that [K.J.] is at a high level of risk, and I was unable to find any significant reasons to lower that assessed level of risk." "[B]ased on the reviewed records, and within a reasonable degree of psychological certainty," Friedman concluded, K.J. "is highly likely to engage in future acts of deviant sexual behavior as defined by the [SVPA] if released into the community at this time."

Voskanian reached a similar conclusion, also noting that appellant had refused to be interviewed. Instead, Voskanian reviewed appellant's prior records, the character of the offenses, the persons with whom, while institutionalized, he agreed to speak and prior evaluations. With respect to prior diagnoses, Voskanian explained that if the evaluator adequately reviewed the case, past impulses, current urges, fantasies and thoughts in arriving at a reasonable diagnosis, he would "give a lot of weight to" it. However, he "arrive[d] at [his] own diagnosis independently"

Like Friedman, Voskanian considered the dismissed offenses as well as Kokonos's evaluation, specifically noting that K.J. was inconsistent in that he "minimize[d] the offenses" while also expressing concern that they might reoccur. This minimization was key to Voskanian's ultimate diagnosis because "[g]enerally, people who have empathy, remorse, they do come clean, so to say, and they do disclose what took place. [K.J.] apparently does it half way. . . . [T]here's considerable confusion in his own accounts. It's a clear-cut conscious minimization." Voskanian also relied primarily on the victims' accounts of the various incidents noting the inconsistencies in appellant's version.

Voskanian found no evidence of empathy during his review. The significance of this lay in the fact that "[e]mpathy is actually one of the driving forces for bettering ourselves." He opined that without empathy, a violent offender could not "rationally [be] expect[ed] to refrain from future behaviors as such." Moreover, Voskanian pointed out that appellant had not received any meaningful treatment for either his sexual offenses or substance dependence.

Voskanian's opinion tracked Friedman's both as to diagnosis and the underlying bases for such diagnosis. These included findings of paraphilia NOS, polysubstance dependence and personality disorder NOS with antisocial traits. This latter diagnosis stemmed from appellant's criminal history, lack of empathy, commission of non-sexual offenses and the diagnoses of other evaluators who were able to interview him. As did Friedman, Voskanian discounted appellant's good behavior in prison as not necessarily an indication of permanent change in behavior because "people with antisocial personality disorder . . . sometimes do very well in [a] structured setting." He clarified that people with the disorder "respect force, control, power. And [when] they're in a setting where somebody else [has] the power, they behave. When they don't have that, they get the power, they do whatever they want."

Finally, Voskanian noted that appellant had not accepted treatment during his incarceration. He pointed out that, although appellant was not sentenced to the ADTC, he had "the opportunity to start at least exploring his issues" and did not do so.

Voskanian determined that appellant's history of several violent rapes, substance dependence, antisocial personality disorder, non-acceptance of treatment, minimization, inconsistent denial and lack of empathy render appellant's recidivism risk high. He concluded, "with a reasonable degree of medical certainty," that appellant possesses a "mental abnormality and a personality disorder that place him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

In her oral opinion, the trial judge found that the State had clearly and convincingly proven that appellant was "highly likely to commit sexually violent offenses in the foreseeable future if not committed as a sexually violent predator for care in a secure environment." The court also ordered an annual review.

II.

On appeal, appellant raises the following issues:

POINT ONE

THE TRIAL COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND ADMITTED THROUGH THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT K.J.

a. Nonconvictions Cannot Be used By the Trial Court In SVPA proceedings To Determine A Committee's Risk Of Reoffense.

b. The State Cannot Evade The Confines of Apprendi/Blakely/ Shepard Through The Backdoor of R. 703.

POINT TWO

K.J.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1, (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES).

POINT THREE

K.J.'s INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE 1, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE K.J.'s TREATMENT IS A "SHAM."

POINT FOUR

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.J. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. Standard of Review.

B. The State failed to prove K.J. suffered from a mental abnormality that caused him to be predisposed to commit acts of sexual violence.

C. The State Failed To Prove The Lack Of Control Requirement Of W.Z.

Appellant first asserts that the trial judge improperly admitted evidence. He specifically targets consideration of non-convictions, hearsay relied on by the experts, judgments of conviction and indictments, presentence reports, victims' statements, evaluations and transcripts of one of his attacks and other generalized evidential rulings.

We first note that the judge indicated that she would not rely on diagnosis or opinions of evaluators who were not available for cross-examination. She also ruled that while she would not consider hearsay as substantive proofs, evaluators could utilize such information in the preparation of their reports.

We next observe that our review of evidentiary rulings is limited, and decisions regarding whether to admit evidence are within the trial court's discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We will overturn such decisions only where there is a clear abuse of discretion. State v. Kemp, 195 N.J. 136, 149 (2008).

We first reject appellant's argument that the use of non-convictions was in error because the "underlying rationale" of United States Supreme Court cases involving the enhancement of criminal sentences should apply to SVPA cases.

Appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004); and Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263, 161 L. Ed. 2d 205, 218 (2005), and contends that these cases preclude the use of non-convictions in determining whether to commit him. We reject that argument with little additional comment. None of the cases apply here as they all address the enhancement of criminal sentences. The SVPA is a protective and non-punitive civil statute, State v. Bellamy, 178 N.J. 127, 137 (2003), and the concern focusing on enhancement of criminal sentences is inappropriate.

We do recognize that in SVPA cases, experts must be cautious in relying upon non-convictions. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div.), certif. denied, 185 N.J. 393 (2005). If an unproven allegation should "provide[] a significant building block" in an expert's opinion, "it would present a troubling issue since significant state action, such as SVPA commitment, cannot and should not be based on unproven allegations of misconduct." Ibid.

Here, the experts and the trial judge relied to some degree on appellant's non-convictions. However, such reliance was for the limited purpose of establishing a pattern of conduct, similar in "characteristics and behavior," and in both instances, the use was tempered by an acknowledgment that such use did not carry the same weight as convicted offenses.

Most critically, however, even absent such consideration, the opinions would not have changed. Both experts found evidence in convicted offenses to support their findings of multiple offenses, a pattern noting that "once [appellant's] sexual desires are triggered, there is little that will stop him," his sadistic behavior, his repetitive rapes and his "need to offend." In sum, the limited weight given to the non-convictions by the judge is such that we find no abuse of discretion.

Appellant also argues that "[v]irtually the entire remainder of the State's exhibits" constituted inadmissible hearsay, including: Moshkovich's and Brandoff's clinical certifications; Kokonos's SVP risk assessment; Frank's ADTC evaluation; indictments; judgments of conviction; presentence reports; transcripts of prior hearings and the trial; and victims' statements. He contends that the our holdings in In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), and A.E.F., supra, 377 N.J. Super. at 473, prohibit reliance on these materials and require reversal of his 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.

Moreover, in SVPA civil commitment cases, STU treatment team reports are admissible as business records under N.J.R.E. 803(c)(6), while any committee statements included within the reports are considered admissible statements of a party under N.J.R.E. 803(b)(1). In re Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004).

In E.S.T., supra, we reversed a commitment order because "the testimony of the experts . . . at the initial commitment hearing . . . relied to an unacceptable extent upon hearsay opinions and findings by other experts that [the SVP] did not have the opportunity to challenge[.]" 371 N.J. Super. at 564. We described in detail the specific reliance on the limited interviews conducted by two psychiatrists, id. at 566-67, and ultimately determined that "the infirmity lies in the greatly reduced, if not entirely absent, opportunity for effective cross-examination, . . . when the experts produced in court and available for cross-examination rely heavily upon the opinions of experts who are not produced." Id. at 573. Moreover, we pointed out that none of the evaluators or experts had actually treated E.S.T.; indeed, he had never received treatment at any time during his seventeen-year incarceration. Id. at 575-76, 578. We concluded that:

As a matter of fundamental fairness, . . . the State should be required to produce at the initial SVPA commitment hearing the physicians who signed the clinical certificates supporting the commitment petition, if they are available and if any expert testifying in court intends to rely on the opinions contained in those certifications in rendering an opinion that the individual is subject to commitment under the SVPA.

[Id. at 575.]

By contrast, in A.E.F., supra, we upheld a commitment order because the testifying experts "did not rely to any significant degree, and perhaps not at all, on [other] clinical certifications . . . ." 377 N.J. Super. at 485. Rather, they "offered their own opinions based on a detailed examination of A.E.F.'s criminal history and prior mental health evaluations, as well as their brief interviews with him." Ibid.

We noted that the "opinion in E.S.T. should not . . . be read to preclude reliance, in part, on prior evaluations conducted for other purposes," as opposed to those created in support of commitment. Id. at 491-92. We concluded that "as long as the opinion ultimately rendered at the initial commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data[,]" reliance on prior evaluations may be permissible with the caveat that they "should be utilized carefully in recognition of their hearsay nature." Id. at 492. We instructed "SVPA hearing judges to carefully scrutinize this material so that its use is not abused." Ibid.

In A.E.F., the experts actually disagreed with the majority of his prior evaluations. Id. at 488-89. We found it particularly significant that neither expert "simply agree[d] with the opinions of other, nontestifying examiners[]" and instead "eschewed reliance on those prior evaluations . . . ." Id. at 489. However, we warned that "if the earlier evaluations had supported the opinions of the testifying experts, a more difficult analysis on our part would be necessary." Ibid.

Here although both Friedman and Voskanian relied on earlier evaluations which ultimately supported their diagnoses, unlike in both E.S.T. and A.E.F., appellant refused to be interviewed by the testifying experts.

In In re Civil Commitment of W.X.C., 407 N.J. Super. 619 (App. Div.), certif. granted, 200 N.J. 475 (2009), we considered a similar circumstance. Relying on A.E.F., we noted that the testifying experts at W.X.C.'s commitment hearing "did not simply 'parrot' the findings of the psychologists who provided" the supporting certifications. Id. at 640. Although they reviewed W.X.C.'s prior offenses, statements to the police, ADTC and other pre-sentencing psychiatric evaluations, presentence reports and objective test data, "[t]hey testified that their opinions were their own and that they did not rely on other professionals' diagnoses." Ibid. Significantly, both experts underwent an extensive cross-examination.

As here, we explained that W.X.C. refused to be interviewed by either testifying expert and, consequently, "cannot now argue that their testimony should not be considered because they did not evaluate him through interviews." Ibid. Because the experts "did not merely rely on reports prepared by non-testifying evaluators for the express purpose of civilly committing W.X.C.," and because ample opportunity existed for cross-examination, the trial judge's consideration of the experts' opinions was not error. Ibid.

Appellant here refused to be interviewed; Voskanian and Friedman had no choice but to rely on prior evaluations, as well as other material, such as presentence reports and victim statements. The only available evaluations were Frank's presentence evaluation from 1990, Konos's SVP assessment, which was prepared just prior to the State's petition and the clinical certifications of Brandoff and Moshkovich.

Friedman emphasized that, although he reviewed these prior evaluations, he considered the resultant diagnoses only insofar as they were different from his own, in which case he went back through the materials to see if he felt he had missed something. Friedman primarily relied on his review of the crimes, with the evaluations providing secondary information regarding appellant's version of events and current state of mind. Likewise, the scores on the Static-99 were based on factors that could be gleaned from materials other than the prior evaluations. Additionally, Friedman disagreed with Brandoff and Moshkovich in a number of areas demonstrating an independent review of the materials and information properly considered.

Voskanian gave greater weight to prior diagnoses if they were reasonable, and it was clear that the evaluator adequately reviewed the case, past impulses, current urges, fantasies and thoughts. However, like Friedman, Voskanian stressed that his own diagnoses were independently derived, although he "would have placed a lot more weight on" his own diagnosis if he "had the opportunity to interview [K.J.] and get his account."

Voskanian, like Friedman, ultimately diagnosed personality disorder NOS with antisocial traits. He noted that he based this determination not only on K.J.'s criminal history and commission of non-sexual offenses, but also on his lack of empathy, which was based in large part on Kokonos's evaluation and the diagnoses of other evaluators. However, Voskanian pointed out that, unlike he and Friedman, these other evaluators were able to interview K.J.

Although in some respects, the testifying experts agreed with the prior evaluators, contrary to K.J.'s contention, both did more than simply "parrot" the findings of the prior evaluators. W.X.C., supra, 407 N.J. Super. at 640. Like the experts in W.X.C., they both reached their own independent diagnoses. Both experts were subject to cross-examination, at which point K.J. had the opportunity to critique their findings. Finally, the trial judge relied on Friedman's and Voskanian's findings but was careful to point out that she did not rely on any inadmissible hearsay except insofar as it was relevant to the experts' credibility. We find no error here.

In addition to the evaluations, K.J. contends that the judgments of conviction and indictments were improperly admitted hearsay. We reject this argument. Judgments of conviction are admissible in accordance with N.J.R.E. 803(c)(22). The Rule provides that "evidence of a final judgment against a party adjudging the party guilty of an indictable offense in New Jersey . . . [may be admitted] to prove any fact essential to sustain the judgment." In civil proceedings, convictions may also "be admissible as proof of the facts underlying convictions[.]" Biunno, New Jersey Rules of Evidence, comment to N.J.R.E. 803(c)(22) (2010); see also A.X.D., supra, 370 N.J. Super. at 201 (noting that, in accordance with N.J.R.E. 803(c)(22), "trial judge properly considered the facts surrounding these offenses").

Although no rule speaks specifically to the admissibility of indictments, it is impliedly proper. In re Civil Commitment of J.M.B. 197 N.J. 563, 597 n.91 (considering that the Court referenced committee's indictments in setting forth the factual scenario of the case), cert. denied, ____ U.S. ____, 130 S. Ct. 529, 175 L. Ed. 2d 361 (2009). We note that some of the indictments were subsequently dismissed; nevertheless, the material contained in the indictments provided background and support for other materials that were properly before the judge. Finally, there is no indication that the judge considered the dismissed offenses in reaching her decision, and there is no error.

We likewise reject K.J.'s claim the judge erred in admitting the presentence reports. We have previously addressed this issue in In re the Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004), where we held that a medical expert may "testify about a [committee's] prior criminal history in order to offer an opinion about [that person's] mental condition." Presentence reports are materials that are "reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition." Ibid. Although, it is important that other supporting materials, such as judgments of conviction, exist such that reliance on the presentence reports is not an expert's only method for reviewing an individual's criminal history. Id. at 613. We see no basis for revisiting yet again.

K.J. also argues that it was error to admit victims' statements, which were included in the police reports which were created following the attacks.

N.J.R.E. 803(c)(6) provides that "[a] police report is generally not admissible to prove the contents of what the citizen reported since members of the public, whether targets of investigations, witnesses or victims, are not under a duty, in the nature of a business duty, to make an honest and truthful report." Biunno, supra, comment 4 to N.J.R.E. 803(c)(6). Here, the court determined that the police reports containing the victims' statements were inadmissible hearsay but were properly admitted as material on which the experts relied. N.J.R.E. 703. Statements made by K.J., however, were properly admitted as admissions of a party. N.J.R.E. 803(b)(1).

K.J. also objects on appeal to the admission of documents, Frank's evaluation and transcripts of proceedings relating to the attack on A.J., to which he did not object during the hearing. Because he failed to object at the hearing, we will not reverse unless we find plain error, or error "clearly capable producing an unjust result[.]" R. 2:10-2.

We conclude that admission of transcripts of prior court proceedings is not plain error constituting reversal. Statements made by K.J. in those documents were properly admissible as admissions of a party. N.J.R.E. 803(b)(1). Moreover, under the circumstances here, where K.J. refused to be interviewed, and the experts were required to review his criminal history, the trial transcripts constitute material reasonably relied on by them in formulating their opinions. N.J.R.E. 703. Similarly, Frank's evaluation was properly utilized as material on which experts typically rely, in accordance with N.J.R.E. 703, and, significantly, it was not a forensic evaluation prepared for purposes of commitment. E.S.T., supra, 371 N.J. Super. at 572-73. Again, we find no plain error. R. 2:10-2.

Finally, we reject K.J.'s generalized arguments regarding other hearsay documents, including: records generated at the STU following K.J.'s admission; K.J.'s admitting psychosocial evaluation dated November 27, 2007; an STU psychological testing note dated January 23, 2008; the Riverfront State Prison face sheet report dated July 9, 2007; and Riverfront State Prison Progress Notes Report dated July 9, 2007. These documents were not admitted at trial, and K.J. did not object to the experts' reliance on them. Most important, in accordance with N.J.R.E. 703, STU treatment reports are "the types of information that [experts] would ordinarily rely upon to assist them in reaching a diagnosis." A.X.D., supra, 370 N.J. Super. at 201-02. These documents were also not the subject of an objection, and we conclude that the use of these materials did not constitute plain error. R. 2:10-2. In sum, the various evidential rulings made by the judge did not demonstrate any abuse of her discretion, and we reject any claims of error.

III.

Appellant raises a number of constitutional arguments specifically that his involuntary commitment under the SVPA violates the procedural due process, equal protection and substantive due process provisions of the United States and New Jersey Constitutions. In addition, he contends that his commitment also violates the ex post facto provisions of both constitutions. These claims have been previously addressed by both the United States and New Jersey Supreme Courts, and we find no basis for revisiting these issues on this appeal. We add the following additional comments.

In In re the Commitment of W.Z., 173 N.J. 109 (2002), the Court upheld the constitutionality of the SVPA. Nothing suggested by appellant on this appeal shows that any of the protections enunciated in W.Z. have not been provided here.

We have previously rejected appellant's claim that the admission of his non-convictions was error. He now claims that the admission of such evidence violated his rights to procedural due process. He further advances that argument by claiming that the State failed to provide him with sex offender treatment during his incarceration.

"'[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protections.'" W.Z., supra, 173 N.J. at 125 (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979)). See also J.H.M., supra, 367 N.J. Super. at 606 ("Commitment proceedings for sex offenders are subject to both the Equal Protection and Due Process Clauses of the Fourteenth Amendment."), certif. denied, 179 N.J. 312 (2004). Where liberty interests are at stake, a higher burden is placed on the State. In re Commitment of D.L., 351 N.J. Super. 77, 88 (App. Div. 2002), certif. denied, 179 N.J. 373 (2004). Nevertheless, in the context of civil commitments, the State is not "required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient . . . ." Addington, supra, 441 U.S. at 430, 99 S. Ct. at 1811-12, 60 L. Ed. 2d at 334.

The United States Supreme Court has "consistently upheld . . . involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards." Kansas v. Hendricks, 521 U.S. 346, 357, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501, 512 (1997). And, in the context of non-SVPA civil commitment, the New Jersey Supreme Court has held that "a person subject to involuntary commitment is entitled to a judicial hearing, a right of notice, the right to present evidence, and the right to be represented by counsel." In re the Commitment of D.C., 146 N.J. 31, 48 (1996).

The SVPA contains numerous procedural due process safeguards. It provides for immediate judicial review, following receipt of the State's petition, in order to determine whether probable cause exists "to believe that the person is [an SVP]." N.J.S.A. 30:4-27.28(f). Only when probable cause is found will the court issue a temporary order of commitment. N.J.S.A. 30:4-27.28(g). The committee is entitled to ten days notice prior to the final hearing. N.J.S.A. 30:4-27.30(a). At the final hearing or any subsequent reviews, the committee has the right to be represented by counsel; be present; present evidence; cross-examine witnesses; and have an in camera hearing. N.J.S.A. 30:4-27.31. Following commitment, annual court review hearings are required. N.J.S.A. 30:4-27.32(a) and -27.35. Moreover, should the committee's treatment team determine at any time that the SVP is no longer likely to commit acts of sexual violence, the court may be petitioned for release. N.J.S.A. 30:4-27.36(a). These requirements clearly comport with procedural due process.

As noted, we have rejected appellant's argument that his non-convictions cannot be used in SVPA commitment hearings because it would violate Apprendi, Blakely and Shepard. These cases involve criminal sentencing guidelines and are not applicable here. The Court has held that SVPA commitment hearings are non-punitive civil proceedings. Bellamy, supra, 178 N.J. at 138, and we must abide by that holding. Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div.), certif. denied, 200 N.J. 207 (2009). Moreover, as we noted non-convictions may be admitted in certain specific circumstances, namely where experts rely on the non-convictions in formulating their opinions. N.J.R.E. 703.

Similarly, the fact that K.J., who was not sentenced to ADTC as a sex offender, was not provided sex offender treatment while incarcerated was not a violation of his due process rights. In accordance with N.J.S.A. 2C:47-3(h)(2), at any time during his incarceration, appellant could have requested a transfer to the ADTC, where he would have received such treatment. His failure to do so does not now prohibit the State from exercising its power to protect the public and appellant himself. Cf. State v. Smith, 190 N.J. Super. 21, 25 (App. Div. 1982) (noting, in context of situation where sex offender sentenced to ADTC was moved to a prison that did not offer sex offender treatment, that defendant had "a right to treatment"), certif. denied, 96 N.J. 319 (1984).

Appellant argues that his equal protection and substantive due process rights were violated. His argument is twofold: first, the use of his non-convictions violated the rationale that the people, rather than the judiciary or expert witnesses, should decide the fate of others; second, he was not provided treatment while incarcerated. We likewise find these arguments without merit. We need not engage in an extended discussion of these issues as they have been addressed by the Court in prior decisions, but we do comment on the state interest involved under the SVPA.

Involuntary commitment of high risk sex offenders is rationally related to the legitimate state interests of protecting the public and treating offenders to eliminate their risk. It does not violate the federal constitution's equal protection and substantive due process clauses. Barone v. Dep't of Human Servs, Div. of Med. Assistance & Health Servs., 107 N.J. 355, 365 (1987). Similarly, since involuntary commitment under the SVPA is substantially related to a permissible legislative purpose, it does not violate the state constitution. Caviglia v. Royal Tours of Am., 178 N.J. 460, 473 (2004). Moreover, to the extent appellant argues he was treated differently from other mentally ill persons, no violation exits where the same procedural mechanisms are applied to both groups. J.H.M., supra, 367 N.J. Super. at 606.

Finally, involuntary commitment proceedings require the balancing of the state's interests in protecting society (police power) and caring for those citizens who cannot care for themselves (parens patriae) with an individual's liberty interests. W.Z., supra, 173 N.J. at 125-26. In Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 152 L. Ed. 2d 856 (2002), the United States Supreme Court "clarified the substantive due process limitations on a state's ability to identify the mental abnormalities that render a sex offender eligible for civil commitment because of his or her dangerousness." W.Z., supra, 173 N.J. at 113. The case required states to make determinations about the offender's inability to control his or her sexually violent behavior, only permitting commitment of those "who have 'serious difficulty in controlling [their] behavior.'" Ibid. (quoting Crane, supra, 534 U.S. at 411, 122 S. Ct. at 870, 151 L. Ed. 2d at 862).

Our Court found that "[a]n inability to control one's sexually violent behavior is the very essence of the SVPA." Id. at 129. Moreover, it determined that "[i]t is sufficient for the Legislature to confine its targeted class of sex offenders subject to civil commitment because of their dangerousness by identifying the degree of lack of control that each must exhibit, tied to a finding of mental abnormality or illness." Ibid. Consideration of non-convictions furthers this purpose when, as here, they are properly utilized as materials on which the experts relied, which is the same manner in which they would be permitted in other cases. N.J.R.E. 703. With the proviso that the State must clearly and convincingly prove "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," the SVPA does not violate substantive due process. W.Z., supra, 173 N.J. at 133-34.

Finally, appellant argues that his commitment in accordance with the SVPA violates the ex post facto clause of the state and federal constitutions because the SVPA is punitive, and its treatment provisions are a sham. These contentions are without basis in law.

We recently addressed this issue. In W.X.C., supra, the committee, like appellant, argued, based on Justice Breyer's dissenting opinion in Hendricks, "that the [SVPA] became a covert vehicle for additional, unconstitutional punishment when the State failed to treat him while he was serving his sentence, only to civilly commit and treat him after he had served his sentence." 407 N.J. Super. at 634. Justice Breyer was concerned about Kansas's failure to require treatment during incarceration, which prompted him to analyze that state's statute to determine whether it was, in fact, aimed at treatment. Hendricks, supra, 521 U.S. at 385, 117 S. Ct. at 2091, 138 L. Ed. 2d at 527 (Breyer, J., dissenting).

In W.X.C., supra, we applied Justice Breyer's analysis to the SVPA, asking first if the New Jersey Supreme Court had "held that treatment under [the SVPA] is a significant objective of the statute." 407 N.J. Super. at 635. We answered in the affirmative. Ibid. See also J.M.B., 197 N.J. at 601; W.Z., supra, 173 N.J. at 120 (noting that Division of Mental Health Services must provide treatment tailored to SVPs). Next, we looked to whether, as in Kansas, the SVPA "'explicitly defers diagnosis, evaluation and commitment proceedings until a few weeks prior to'" the release. W.X.C., supra, 407 N.J. Super. at 635 (quoting Hendricks, supra, 521 U.S. at 386, 117 S. Ct. at 2094, 138 L. Ed. 2d at 530 (Breyer, J., dissenting)). Citing to the administrative code, inmate handbook and Department of Corrections Internal Management Procedure, we determined that treatment is available throughout the duration of an offender's incarceration. W.X.C., supra, 407 N.J. Super. at 635-37.

Third, we considered the fact that legislation, which is intended to help the offender, while also protecting the public, "'would avoid significantly greater restrictions of an individual's liberty than public safety requires.'" Id. at 637 (quoting Hendricks, supra, 521 U.S. at 388, 117 S. Ct. at 2095, 138 L. Ed. 2d at 531 (Breyer, J., dissenting)). We concluded that "[t]he SVPA is clearly designed to ensure that committees are not confined longer than necessary to provide effective treatment." Ibid. Moreover, the SVPA is crafted in such a way as to protect SVPs' liberty interests far more than punitive statutes. Ibid.

Finally, we considered the laws of other states, and we noted that New Jersey was squarely in line with the statutory schemes of several other states which were "implicitly found satisfactory and not punitive[]" by the United States Supreme Court. Id. at 637-38. The SVPA does not violate the ex post fact clause. Id. at 639.

Lastly, we reject without any additional comment, appellant's argument that Friedman and Voskanian committed ethics violations by testifying at his commitment hearing, thereby further demonstrating that the alleged purpose of his commitment (to provide treatment) was a guise for imposing additional punishment. The argument is devoid of any merit.

IV.

Finally, appellant argues that the State failed to prove by clear and convincing evidence that he should have been involuntarily committed under the SVPA. We disagree.

We first note that our consideration of judgments of commitment is subject to an "extremely narrow" scope of review. In re the Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Reviewing courts "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." A.E.F., supra, 377 N.J. Super. at 493.

"[T]he ultimate determination of [an SVP's] risk of reoffense . . . is reserved to the sound discretion of the trial court." In re Registrant G.B., 147 N.J. 62, 79 (1996).

Here, the trial judge thoroughly reviewed appellant's criminal history, as well as the evidence presented by the State. It found that "[t]he diagnoses of Drs. Friedman and Voskanian [were] not contradicted. The [S]tate's evidence was clear and convincing. [Appellant] continues to be a sexually violent predator, as he was in 1988 committing the rash of extraordinar[y] rapes on at least four women who were strangers to him."

The judge further found that appellant suffered from abnormal mental conditions and personality disorders predisposing him to acts of sexual violence. Moreover, he demonstrated difficulty in controlling his sexually violent behavior, and his possession of anti-social tendencies only serve to "more readily permit him to act upon his sexual pathology." What little control K.J. may have is further diminished by his substance dependence. Therefore, the judge was "clearly convinced that [appellant] is highly likely to commit sexually violent offenses in the foreseeable future if not committed as a sexually violent predatory for care in a secure environment."

Both experts diagnosed appellant with paraphilia NOS, non-consent. Although appellant's offenses were committed over a shorter period of time than is usually found with this diagnosis, eight days as opposed to six months, Friedman explained that appellant demonstrated a deviant and "compulsive arousal pattern," which was clearly demonstrated by the escalation of his attacks within "a very short period of time[.]" Friedman had little doubt that K.J. would have continued his spree had he not been apprehended.

Both Friedman and Voskanian were concerned by appellant's multiple attacks in single days, especially by those that followed successful attacks. Moreover, both experts explained that this type of behavior will not spontaneously disappear and requires treatment. Finally, Friedman was extremely troubled by appellant's statements to Kokonos regarding concern that his urges may return and might cause him to commit similar offenses.

Both experts also diagnosed appellant with substance dependence. This was concerning because substance abuse was closely related to K.J.'s sexual offenses. Finally, the shared diagnosis of personality disorder NOS with antisocial features suggested that appellant had difficulty empathizing with others and a tendency to act on his desires without regard to others when given the power or opportunity to do so. Both experts concluded that, without treatment, it was likely K.J. would be unable to control his sexually deviant behavior.

The judge's agreement with the experts' diagnoses was based on substantial evidence in the record. The evidence clearly supported the conclusion that appellant's disorders predispose him to commit acts of sexual violence was reasonable and is entitled to deference.

The experts concluded that appellant possessed a high risk of recidivism. This was exacerbated by appellant's level of compulsivity and apparent failure to recognize the wrongness of his behavior. His multiple assaults, particularly those which were attempted following successful assaults, indicated to Friedman that appellant enjoyed raping and were indicative of appellant's tendency toward impulsivity and aggressiveness, which suggests he is unable to refrain "from acting on deviant urges." Friedman concluded that K.J.'s arousal pattern and disordered personality combined to provide "a very robust predictor of sexual recidivism risk" and was "highly likely" to reoffend "if released into the community at this time." This opinion was confirmed by Voskanian.

The trial judge agreed that appellant was highly likely to commit sexually violent acts if not confined in accordance with the SVPA. She relied on the experts' uncontradicted determinations and concluded that appellant suffers from mental conditions and personality disorders predisposing him to sexual violence. She determined that appellant had "serious difficulty controlling his behavior" based on his rape spree, admitted substance abuse and anti-social personality traits that rendered him more able "to act upon his sexual pathology." The judge's findings were supported by clear and convincing evidence.

 
Affirmed.

We assume, based on Voskanian's report and initial testimony that his reference to "antisocial personality disorder" is actually referring to his diagnosis of personality disorder NOS with antisocial traits. These are two different disorders.

The record does not indicate whether that review took place or whether there were any additional reviews.

(continued)

(continued)

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A-3325-07T2

RECORD IMPOUNDED

June 14, 2010