IN THE MATTER OF THE CIVIL COMMITMENT OF P.W.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5851-07T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF P.W.B.

SVP-477-07.

________________________________________

June 28, 2011

Submitted October 14, 2010 - Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP- 477-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (William F. Culleton, Jr., Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).

PER CURIAM

Defendant P.W.B. appeals from a June 2, 2008 order directing his commitment for treatment as a Sexually Violent Predator (SVP) at a Special Treatment Unit (STU) and setting a date for further review on May 18, 2009. We affirm.

The State filed its original Petition for Civil Commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.28, on November 14, 2007. Hearings were conducted before Judge Philip M. Freedman on May 19 and 29, 2008. At the time of the State's motion for civil commitment, defendant was incarcerated, serving a forty-year sentence with twenty years of parole ineligibility. Defendant's incarceration arose from multiple charges of sexual assault to which defendant pled guilty on March 20, 1987.

The charges result from four separate incidents.1 On May 8, 1986, defendant broke into the home of a seventy-five-year-old woman and sexually assaulted her. Police responding to a call from a neighbor of a burglary in progress at the residence, found and apprehended the defendant. In a statement to police, defendant stated he was under the influence of crack cocaine and did not remember assaulting the victim. Defendant was subsequently released on bail.

On July 19, 1986 at 7:50 a.m., while on bail, defendant sexually assaulted a twenty-year-old woman at gunpoint. In addition, on August 29, 1986, defendant dragged an eighteen-year-old female acquaintance into Chancellor Avenue Park at knifepoint, forced her to have intercourse and threatened to kill her if she told anyone. On September 12, 1986, defendant approached an eighteen-year-old woman and forced her at knifepoint into Chancellor Avenue Park where he sexually assaulted her twice. Defendant claims he was intoxicated on crack cocaine during all of these crimes.

At defendant's sentencing hearing on August 11, 1988, the court recommended, but did not sentence, defendant to be confined and treated at the Adult Diagnostic and Treatment Center (ADTC). In December 2004, defendant was transferred to ADTC for treatment. He was assigned to a level one psychoeducational group, Understanding and Controlling Sexual Deviance. After the first few sessions, defendant stopped attending. After speaking with his attorney a couple weeks later, defendant re-entered the program. Initially, he was placed on the fast-track-process group but was later removed once it was determined his release date was later than previously thought.

After failing the written examination for the group, defendant passed an oral version of the same test and was moved to a level two psychoeducational group, Understanding Sexual Assault. Defendant failed the final examination for this group and had to repeat the group. In December 2005, defendant was placed in a level three process group. At the group meetings, defendant discussed the details of his offenses. Defendant claimed not to remember many details due to his high level of intoxication. He also described his crimes markedly different from the official record. Any inconsistencies pointed out by other group members had little effect on defendant. Defendant refused to attend the Substance Abuse psychoeducational group and believes he does not have a drug problem. This issue was of notable concern to the ADTC staff, considering his reliance on intoxication as an excuse for his offenses.

In defendant's termination report, ADTC staff determined defendant was at a moderate to high risk of recidivism and that his risk level was not mitigated by his limited progress in treatment. The report described defendant's motivation and participation in his treatment as "uneven." It also noted that defendant continued to adamantly deny the majority of information detailing his crimes. The report recommended defendant be screened for commitment as an SVP.

At the May 19, 2008 hearing, the State presented the testimony of Howard Gilman, M.D., who testified that he attempted to interview defendant on two occasions, but that defendant declined. Because defendant refused to be interviewed, the doctor based his psychological evaluation on historical data and past conduct. From those records and from his brief interactions with defendant, Dr. Giles diagnosed defendant with paraphilia not-otherwise-specified (paraphilia NOS), which is an abnormal sexual arousal pattern unable to be clearly categorized. Dr. Gilman testified that he considered defendant's paraphilia NOS to be coupled with sadistic traits, because the defendant seemed to be aroused by threatening his victims with weapons. The doctor also diagnosed defendant with multiple substance abuse dependence, based on defendant's admitted use of cocaine and alcohol, and antisocial personality disorder. Dr. Gilman testified that these conditions do not spontaneously remit and they increase the risk of recidivism. For those reasons, Dr. Gilman opined that defendant would be "at high risk to sexually re-offend if not civilly committed for continued treatment."

At the hearing on May 29, 2008, the State presented the testimony of Rosemarie Vala Stewart, Ph.D., concerning her forensic evaluation of defendant. Dr. Stewart testified defendant also declined to interview with her, and he refused any psychometric testing. Consequently, Dr. Stewart testified she based her diagnosis on a review of, among other things, police documents, judgments of conviction, ADTC notes and disciplinary reports from the Department of Corrections. She diagnosed defendant with paraphilia NOS (non-consent), crack cocaine dependence, alcohol abuse and personality disorder NOS with antisocial features. In her evaluation, Dr. Stewart concluded defendant "continues to present a high risk for future sexual re-offense."

On June 2, 2008, Judge Freedman found by clear and convincing evidence as follows

that the [defendant] suffers from a mental abnormality in the form of a paraphilia . . . along with the cocaine and alcohol problems and that he has a personality disorder . . . .

And . . . that the paraphilia and the personality disorder individually and particularly in conjunction predispose him to engage in acts of sexual violence and that if he were released, he would have serious difficulty in controlling his sexually violent behavior to such a degree that he would be highly likely to engage in acts of sexual violence, clearly within the reasonably foreseeable future . . . .

Accordingly, the court entered a judgment which ordered that defendant be committed to the STU, the secure facility designated for the custody, care and treatment of sexually violent predators and it set a twelve-month review date. Defendant was permitted to file an appeal as within time, and he raised the following arguments for our consideration:

POINT I: THE INDEFINITE COMMITMENT TO THE STU, AFTER DENYING PWB TREATMENT WHILE IN PRISON, WAS PUNITIVE AND THEREFORE VIOLATED THE CONSTITUTIONAL PROTECTION AGAINST EX POST FACTO LAWS.

POINT II: THE COMMITMENT OF PWB TO THE STU WAS IRRATIONAL, AND THEREFORE VIOLATED THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW, BECAUSE THE STATE DELIBERATELY WITHHELD TREATMENT FROM PWB FOR SIXTEEN YEARS BEFORE SENDING HIM TO AVENEL, DESPITE THE FACT THAT HE HAD BEEN FOUND ELIGIBLE AND THAT THE SENTENCING COURT RECOMMENDED TREATMENT AT AVENEL.

POINT III: IN THIS INITIAL COMMITMENT HEARING, WHERE PWB HAD BEEN SEEN BY PREVIOUS EVALUATORS, THE TRIAL COURT ERRED BY RELYING UPON EXPERT OPINONS THAT WERE BASED SOLELY UPON A REVIEW OF NON-CURRENT RECORDS CONSTITUTING INADMISSIBLE AND UNRELIABLE HEARSAY.

After a careful analysis of defendant's legal contentions, we affirm the court's order of civil commitment under the SVPA.

I.

Defendant argues the State's delay in sending him to ADTC and his subsequent commitment under the SVPA is an ex post facto law in violation of the State Constitution. Defendant asserts the State allowed him to languish at a correctional facility for sixteen years and withheld treatment it now claims he needs. Defendant maintains the natural consequence of delaying the treatment at ADTC results in extended confinement with punishment as the only plausible purpose.

We start by reiterating our Supreme Court's caveat that "the ex post facto protection found in our constitution is not broader than its federal counterpart." In re Civil Commitment of W.X.C., 204 N.J. 179, 187 (2010). To violate the ex post facto clause, a statute must: "(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." Ibid. (quoting State v. Muhammad, 145 N.J. 23, 56 (1996)).

We find defendant's argument that SVPA is an ex post facto law to be foreclosed by the Court's recent holding in W.X.C. In W.X.C., the defendant was never provided treatment at ADTC but was, upon completion of his criminal sentence, civilly committed on a petition from the State. W.X.C. argued the SVPA was punitive when "applied to an offender who has completed his incarceration and is then adjudged to be in need of treatment, but who was not previously afforded the opportunity to undergo such treatment while incarcerated." Id. at 189.

The Court conclusively stated:

The SVPA is remedial and regulatory in nature, and . . . its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute. We decline to conclude that the SVPA is transformed into a punitive, and therefore unconstitutional, enactment merely because it applies to some individuals, like defendant, who were not provided with specialized treatment prior to civil commitment.

[Id. at 196.]

Therefore, in light of the Court's guidance, we find defendant's argument of an ex post facto violation due to partial treatment during his sentence equally unavailing. Defendant was sentenced to an aggregate of forty years incarceration with twenty years of parole ineligibility. The court did not sentence him to ADTC but recommended he be treated under the New Jersey Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10. However, the SOA and SVPA "employ[] different definitions and [have] different criteria for their application." In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 223 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005).

To be eligible for a sentence under the SOA, "a defendant must acknowledge his sexually offensive conduct in order to be amenable to treatment and must accept his need for treatment and must be willing to participate in treatment." Ibid. For a civil commitment, the individual convicted of a sexually violent offense must suffer "from a mental abnormality or personality disorder," putting him at risk to commit additional sexually violent acts if left unconfined. Ibid. Factors integral to admission into ADTC such as admissions, amenability to treatment or "sexual compulsion" are not required for civil commitment under the SVPA. Ibid. (citing In re Commitment of W.Z., 173 N.J. 109, 129 (2002)). The SVPA centers on the defendant's current mental condition and his "present danger to the public." Ibid. (quoting In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002)).

II.

Defendant next argues treatment at ADTC was deliberately withheld from him for sixteen years. Defendant asserts, since he was not initially provided with treatment through the SOA, he cannot be civilly committed. The record is unclear on reasons for the court's mere recommendation of admission to ADTC and not a sentence. Notably missing from the record and defendant's argument on appeal is any evidence that he requested a transfer to ADTC during his incarceration.

Defendant argues that an amendment to N.J.S.A. 2C:47-3 had the effect of stalling treatment at ADTC for prisoners serving more than seven years. The statute reads:

If a . . . statutory mandatory minimum term of more than seven years is imposed, the offender shall be confined in a facility designated by the commissioner pursuant to section 2 of P.L. 1969, c.22 [N.J.S.A. 30:4-91.2]. At least [thirty] days prior to the date which precedes the expiration date of the mandatory minimum term by five years, the Department of Corrections shall complete a psychological examination of the offender to determine the offender's amenability to sex offender treatment and willingness to participate in such treatment; provided, however, no such examination shall be required if less than two years has elapsed since the Department of Corrections completed a psychological examination pursuant to N.J.S.A. 2C:47-1. If the report of the examination reveals that the offender is amenable to sex offender treatment and is willing to participate in such treatment, the offender shall be transferred to the Adult Diagnostic and Treatment Center as soon as practicable.

[N.J.S.A. 2C:47-3(h)(3).]

Defendant argues a delay in his treatment at ADTC resulted in his civil commitment and if he had been sentenced to ADTC originally, he would not have needed a civil commitment. Defendant insists waiting to provide treatment is therefore irrational. We are not persuaded by defendant's argument.
The amendment to the statute governing admission to the ADTC was prompted by the recommendations of the Report of the Joint Task Force to Study the Adult Diagnostic and Treatment Center. See Report of the Joint Task Force to Study the Adult Diagnostic and Treatment Center (1995). The Task Force concluded short-term treatment was more effective than five- or ten-year treatment schedules because inmates can "burn out" in therapy. Id. at 10. The "delay" in therapy is therefore not irrational as defendant argues, but a focused effort to improve efficiency and treatment of certain sex offenders.

Further, defendant's failure to take full advantage of the program once admitted harbors equal potential to explain his presently high risk of recidivism. Defendant's ADTC termination report noted that he stopped attending classes after only a few sessions. To his therapist, defendant lamented that he did not want to attend or participate in treatment. It was not until two weeks later after "speaking with his attorney" that he decided to participate.

The report concluded that defendant had failed to internalize the concepts of his psychoeducational groups concerning his deviant cycle and relapse prevention skills. The report further recommended defendant retake the Relapse Prevention I psychoeducational module. It ultimately considered defendant at a high risk of recidivism and that his motivation and participation in the program was "best . . . described as uneven." Defendant's continued inability to provide a consistent version of his offenses and his refusal to accept his drug abuse problems also influenced the report's recommendation he be civilly committed.

Thus, any delay in treatment through the ADTC program was purposely assumed by the Legislature to improve treatment, and any shortfalls in defendant's treatment are integrally related to defendant's lack of participation.

III.

Defendant argues that there was insufficient evidence to support his commitment as an SVP and that the court erred by unreasonably relying on documentary hearsay. Defendant also argues the reports recommending his commitment are flawed because they do not include interviews with the defendant (defendant refused to speak with the experts on several occasions), and the experts failed to corroborate their hypotheses with contemporary information from available sources.

"A trial court's evidentiary rulings are subject to deference absent a showing of abuse of discretion for clear error in judgment." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 93 (App. Div.), aff'd, 193 N.J. 222 (2007), cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

Defendant disputes the use of prior convictions, pre-sentence reports and ADTC evaluation reports by Dr. Gilman and Dr. Stewart in arriving at their ultimate expert conclusions. N.J.R.E. 703 clearly states that:

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.

Pre-sentencing reports are routinely used in SVP hearings, and a testifying expert may rely on pre-sentence reports in preparing his or her opinions. See In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003). "An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state." Ibid. (quoting State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001)).

The experts in this case relied on pre-sentence reports "to obtain a history of what happened through the years, to see how the people involved in the offenses viewed the offenses, and to get a sense of the way [defendant] responded to these situations over time." J.H.M., supra, 367 N.J. Super. at 613. Furthermore, the testifying doctors relied on a litany of other documents to arrive at their diagnosis. They did not mimic the conclusions of other doctors, but made their own independent assessments. Cf., In re the Commitment of E.S.T., 371 N.J. Super. 562, 575-76 (App. Div. 2004).

In this case, the SVP court allowed the "judicious use of hearsay," In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.) certif. denied, 185 N.J. 393 (2005), while not allowing hearsay to dominate the proceedings. As Judge Freedman stated, "I'm not relying on the hearsay aspect to support my conclusions. I am talking about the record that was relied on by the experts. The experts under our rules of evidence, experts of this kind rely on hearsay in coming to their conclusions . . . ." It is this balance which should be achieved in SVPA review hearings.

To the extent defendant refused to be interviewed by either testifying doctor, he should not be allowed to benefit from his lack of cooperation in frustrating or impeding a more thorough expert analysis. We find no fault with the court's exercise of its discretion in conducting its evidentiary hearings or in making its rulings.

Affirmed.

1 Pursuant to the plea agreement, one of defendant's indictments for sexual assault was dismissed entirely.