IN THE MATTER OF THE CIVIL COMMITMENT OF F.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1139-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF F.D., SVP #202-01

____________________________________________

November 16, 2011

Argued October 25, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP No. 202-01.

Joan Van Pelt, Designated Counsel, argued the cause for appellant F.D. (Joseph E. Krakora, Public Defender, attorney).

David DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney).

PER CURIAM

F.D. appeals from a September 30, 2010 order, which continued his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He has presented two arguments, one relating to the procedure followed during the hearing and the other relating to the sufficiency of the evidence. We reject both arguments and affirm.

A criminal defendant, who has been convicted of a predicate offense to the SVPA, may be subject to an involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).

To warrant commitment of an individual or the continuation of a prior commitment, the State must prove that "the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002); see also In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). In that setting, the court must address the individual's "present 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 person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The record reveals that F.D. is now fifty-five years old. He has had a considerable criminal history, which we described in an earlier opinion and need not repeat here, except to summarize that F.D. was arrested for six sex-related offenses, five of which resulted in convictions, the first of which occurred in 1976 and the last in 2001. See In re Commitment of F.D., No. A-5929-08 (App. Div. Feb. 1, 2010) (slip op. at 3-6).

The State first petitioned for and obtained F.D.'s commitment in 2001. Commitment orders entered in 2003 and 2009 were appealed and affirmed by this court. See Ibid.; In re Commitment of F.D., No. A-4637-02 and No. A-2267-05 (App. Div. Dec. 11, 2009). The present appeal concerns an order continuing F.D.'s commitment entered on September 30, 2010. In this appeal, he argues that the judge's findings were against the weight of the evidence. He also argues there were procedural defects in the trial court proceedings, a matter which we consider first.

I

The review hearing started on July 19, 2010. At that time, the judge heard the testimony of two State's witnesses, Dr. Alberto M. Goldwasser and Dr. Joy Ellick. The hearing continued on July 23, 2010; at the outset of that proceeding, the State acknowledged that it had rested its case. The judge then heard the testimony of F.D.'s expert witness, Dr. Christopher Lorah. Immediately thereafter, counsel provided the judge with their oral summations. F.D.'s counsel particularly focused on what she alleged to be the difficulties in communication between F.D. and Dr. Goldwasser. Counsel argued that F.D. was confused by Dr. Goldwasser's questioning or his mode of examination and urged the rejection of Dr. Goldwasser's conclusions because they were based on the expert's lack of patience with F.D. and not on F.D.'s actual condition. Indeed, during the summation, the judge and F.D.'s counsel engaged in a colloquy that suggested the judge's agreement that there was some degree of miscommunication between F.D. and Dr. Goldwasser. That is, F.D.'s counsel argued that other evaluators had previously concluded F.D. has cognitive limitations, and that Dr. Goldwasser unfairly determined that this conclusion was wrong, that F.D. has "average intelligence," and is "malingering" and "manipulative." The judge responded, suggesting "there may have been some kind of miscommunication" because Dr. Goldwasser has "a strong accent."

The attorneys completed their summations, and the judge reserved decision.

The parties were again in court on September 30, 2010, at which time the judge immediately revisited the earlier discussion about Dr. Goldwasser's evaluation of F.D.:

I was concerned about whether or not . . . [F.D.], when he was interviewed by Dr. Goldwasser, whether he was really understanding[] Dr. Goldwasser. Because Dr. Goldwasser does have an accent which I had no problem with, . . . but I was concerned that [F.D.] may have had a problem understanding Dr. Goldwasser; and, there-fore, I thought maybe Dr. Goldwasser may have misinterpreted also what [F.D.] was telling him; and so, therefore, I ordered that there be an additional evaluation done by a psychiatrist.

Later during these initial comments, the judge said he would not consider Dr. Goldwasser's testimony or his report. When the Deputy Attorney General objected, the judge said he would "reserve" on whether or to what extent he would rely on Dr. Goldwasser's testimony.

Following that colloquy and a few other unrelated matters, Dr. Harris was called to testify. With the completion of his testimony, counsel again summed up, and the judge rendered an oral decision.

As relevant to this aspect of F.D.'s appeal, the judge again observed there were communication problems between Dr. Goldwasser and F.D. that warranted the disregarding of Dr. Goldwasser's testimony:

[W]hile Dr. Goldwasser I'm sure his report is done very professionally, he does have an accent and I ascertained during the direct -- cross-examination that Dr. Goldwasser and [F.D.] during the interview really were not communicating. I believe that Dr. Goldwasser was misinterpreting some of what [F.D.] said. So I am disregarding the testimony.

The judge then reiterated that he had "ordered another evaluation by a psychiatrist," namely, Dr. Harris.

Though he never objected at trial, F.D. now argues that this procedure was flawed, that the judge should not have considered Dr. Harris's testimony, and that he was entitled to a decision based on the evidence adduced only during the first two hearing days. F.D. chiefly contends that Dr. Harris was the judge's witness and the procedures governing civil commitment hearings do not permit the court to call its own witnesses.

If it is fair to conclude that the judge had essentially appointed and called Dr. Harris as his own witness -- and we think it is -- we disagree with F.D.'s argument. There are no statutory or regulatory directives regarding civil commitment hearings that preclude a judge from taking such action, and the rules of evidence, which apply in the absence of contrary authority, permit a judge, "in accordance with law and subject to the right of a party to make timely objection" to "call a witness." N.J.R.E. 614. F.D. has not argued that the ordering of an evaluation and testimony of Dr. Harris was done without notice or an opportunity to be heard. The fact that more than two months elapsed from the parties' first summations to the testimony of Dr. Harris demonstrates that F.D. had sufficient opportunity to object to the procedure. Indeed, no objection was lodged when Dr. Harris was called to testify on September 30, 2010.

We, thus, reject the contention that we should view the hearing as having been completed, with the exception of the judge's decision, when counsel first completed their summations on July 23, 2010. Or, stated another way, we reject the argument that the judge was obligated to decide the matter based only on the testimony of Drs. Goldwasser, Ellick and Lorah. Judges have long had the inherent power to appoint independent experts, Finn v. Mayor & Council of Norwood, 227 N.J. Super. 69, 74 (App. Div. 1988) -- a power now codified in N.J.R.E. 614 -- when the court deems it appropriate to enhance the presentation and understanding of the matter at issue, Matter of C.A., 146 N.J. 71, 109 (1996); Bowen v. Bowen, 96 N.J. 36, 52 (1984). In exercising that power, the judge found that Dr. Goldwasser and F.D. had a communication problem -- a finding deserving of our deference -- and he remedied that unfortunate circumstance by directing the examination of F.D. by Dr. Harris. We find no abuse of discretion in the actions taken by the judge in this unusual situation.

II

F.D. also argues that the judge's findings were not supported by credible evidence. We also disagree with this argument.

The judge relied upon the testimony of Dr. Harris, finding that F.D. suffers from:

a mental abnormality, a personality disorder that affects him emotionally, cognitively, [and predisposes him to] acts of sexual violence. Dr. Harris diagnosed [F.D.] with Axis-I paraphilia NOS coercion not exclusive, alcohol dependence, cocaine dependence; Axis-II, antisocial personality disorder, mild mental retardation, and . . . met five of the seven criteria for antisocial personality disorder. He failed to conform his social norms, deceitful, conning others for personal profit or pleasure, impulsive, failure to plan ahead, irritable, aggressive. Repeat of physical fights, assaults, reckless disregard for the safety of others. And that these . . . mental conditions do not spontaneously remit. They can only be mitigated by way of treatment.

The judge also found that F.D. is in "Phase-III of treatment and some time in the future he could be considered for a discharge plan, but not at the present time."

In addition, the judge recognized that F.D. had not "broken any rules at the STU" -- a fact Dr. Harris found to be "remarkable" considering F.D.'s past conduct -- but was satisfied that this could be "explained by the way of alcohol and his antisocial personality disorder does recede with age." Dr. Ellick's testimony supported these and Dr. Nelson's other conclusions.

Dr. Lorah, on behalf of F.D., agreed with the diagnosis of antisocial personality disorder, which also predisposes "generalized criminal behavior, but not necessarily sexual violent behavior." Dr. Lorah concluded that it did not appear F.D. was "highly likely to re-offend sexually." In considering this testimony, the judge recognized that Dr. Lorah was very thorough but he did not find his conclusions credible.

Based on his consideration of the evidence and his finding that Dr. Harris's opinion was far more credible than Dr. Lorah's, the judge concluded that the record contained clear and convincing evidence that F.D. continues to be a threat to the health and safety of others because it was "highly likely that he will not control his sexually violent behavior and highly likely he will reoffend."

In considering the arguments posed in this appeal, our scope of review is narrow. We defer to a trial judge's findings when they are supported by evidence in the record, and we "give utmost deference to the commitment finding and reverse only for a clear abuse of discretion." In re Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). After carefully reviewing the record on appeal, we find no reason to intervene. The record more than adequately supports the judge's determination that F.D. suffers from mental abnormalities that predispose him to commit sexually violent acts, that he has serious difficulty controlling his behavior, and that he is highly likely to reoffend.

Affirmed.