IN THE MATTER OF THE CIVIL COMMITMENT OF W.O.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2246-10T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

W.O., SVP-569-10.

_____________________

December 16, 2013

Submitted December 4, 2013 Decided

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-569-10.

Joseph E. Krakora, Public Defender, attorney for appellant W.O. (Alison Perrone, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Theodore Martens, Deputy Attorney General, on the brief).

PER CURIAM

W.O. appeals from the September 9, 2010 judgment involuntarily committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

Under the SVPA, the State must prove by clear and convincing evidence that the person whose commitment it seeks, "has been convicted . . . of a sexually violent offense . . . and 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 standard is as follows:

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).]

W.O. is a thirty-nine-year-old convicted sex offender. On July 8, 1997, while he was on parole for a drug offense, W.O. sexually assaulted a twenty-six-year-old woman after breaking into her apartment. He grabbed the victim by the neck, threw her to the floor, punched her, and penetrated her vaginally before ejaculating inside her. W.O. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. On July 12, 1999, he was sentenced to a nine-year custodial term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release; community supervision for life; and mandatory sex offender therapy. This was W.O.'s predicate sexually violent offense for civil commitment under the SVPA.1

W.O. was later released on parole. On April 30, 2007, W.O. approached a ten-year-old girl, showed her a dildo, and asked her "Is it big?" The next day, he approached a ten-year-old girl, stated "Can I ask you a question, is this big?," and then exposed his penis to her. One day later, W.O. approached two other girls, ages nine and eleven, and, when they turned to look back at him, pulled down his pants and exposed his penis to them. All of these incidents occurred during the day. In addition to being on parole, W.O. was participating in mandatory outpatient sex offender treatment at the time of these offenses.

W.O. pled guilty to three counts of fourth-degree lewdness observed by children, N.J.S.A. 2C:14-4b(1), and one count of fourth-degree failure by a sex offender to report a change of address, N.J.S.A. 2C:7-2d. On August 17, 2007, he was sentenced to concurrent eighteen-month custodial terms on the three lewdness counts, and a consecutive twelve-month term for the failure to report charge.

On April 15, 2010, the State filed a petition for civil commitment pursuant to the SVPA. At the final hearing, the State presented the testimony of Dr. Dean DeCrisce, a psychiatrist, and Dr. Nicole Paolillo, a psychologist. W.O. elected not to present any witnesses or expert testimony on his behalf.

Dr. DeCrisce testified that W.O. refused to meet with him as part of the clinical evaluation. However, Dr. DeCrisce was able to formulate an independent conclusion, write a report, and testify based on his thorough review of W.O.'s complete discovery file and treatment records. He testified that the sources of information he reviewed were the types of documents normally considered by persons in his profession when conducting risk assessment evaluations. He stated he considered the diagnostic impressions of other experts found in the sources of information, but, ultimately, formulated his own diagnosis of W.O.

Dr. DeCrisce testified at length concerning W.O.'s sexually violent offense in 1997 and his subsequent sex offenses in 2007. He diagnosed W.O. with Paraphilia, not otherwise specified (NOS), Polysubstance Dependence, and Antisocial Personality Disorder. He opined that "there is adequate evidence to suggest that these crimes were sexually motivated by an internal sexual drive, rather than some type of an antisocial entitlement." With regard to the 2007 offenses, Dr. DeCrisce explained that W.O. "put himself at very high risk of being caught, and so that suggests quite a bit of drive and impulsivity to do this in the middle of the day, when it's very unlikely that he would have gotten away with it." He also noted that all of W.O's sex offense convictions occurred while he was on parole.

Dr. DeCrisce concluded that a diagnosis of Paraphilia, Polysubstance Dependence, and Antisocial Personality Disorder "combine to give [W.O.] a high likelihood to sexually re-offend, because he has not received any kind of adequate treatment to mitigate any of those factors." Therefore, Dr. DeCrisce opined that W.O. should be confined for treatment.

Dr. Paolillo interviewed W.O. and used the same sources of documentary information relied upon by Dr. DeCrisce. She likewise formed her own diagnostic conclusions based upon her independent analysis. Dr. Paolillo diagnosed W.O. with Paraphilia NOS, with non-consenting and exhibitionistic traits (Provisional), Polysubstance Dependence, and Antisocial Personality Disorder. Like Dr. DeCrisce, she opined that this diagnosis "predispose[d] [W.O.] to sexual acting out in the future." She explained in her report that W.O's "reconviction for another sexual offense while under [community supervision for life] and his self-reported history of failure to comply with supervisory conditions suggests a nonexistent ability to being able to positively respond to the external controls inherent in [community supervision for life]." She testified that

compliance with supervision in the community is one of the largest predictors identified within sex offender recidivism literature that relates to risk to sexually act out again. And given that [W.O.] struggled with complying, struggled with following the rules under supervision, I think that this is a concern, this is a risk factor that I think exacerbates his risk.

Dr. Paolillo further noted that W.O.'s substance abuse problem was "linked to his sexual offending based on [its] disinhibiting qualities." She concluded that W.O. was "highly likely to engage in future acts of deviant sexual behavior as defined by the SVP statute if released into the community at this time."

Judge John McLaughlin rendered a comprehensive oral decision on September 9, 2010, which canvassed the procedural and documentary record and case law. He also outlined in detail his findings regarding the testimony and opinions of Drs. DeCrisce and Paolillo, which he credited. The judge found that the State clearly and convincingly proved its case for civil commitment. W.O. was convicted of aggravated sexual assault, a sexually violent offense. Based on the expert testimony, Judge McLaughlin was convinced that W.O. suffered from Paraphilia, Polysubstance Dependence, and Antisocial Personality Disorder. He further found, based on the uncontroverted medical testimony, that W.O. "has serious difficulty controlling his harmful sexually violent behavior caused by these abnormalities" and that W.O. "has demonstrated in the past that he cannot control his sexual urges, even while he was under community supervision and he was on [parole], and even after he had received and was receiving prior sex offender treatment." Thus, the judge concluded that W.O. was "highly likely to re-offend in the reasonable, foreseeable future if not committed to the STU."

Judge McLaughlin entered an order on the same date committing W.O. to the STU, with a review scheduled for August 9, 2011. This appeal followed.

On appeal, W.O. raises the following contentions:

POINT ONE

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

POINT TWO

THE COURT'S DETERMINATION THAT W.O. FELL WITHIN THE PURVIEW OF THE SVPA MUST BE REVERSED BECAUSE IT IS BASED UPON UNPROVEN ALLEGATIONS.

POINT THREE

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. DECRISCE AND PAOLILLO BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS.

Based on our examination of the record and the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Our review of a trial court's decision in a commitment proceeding is "extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We afford "special deference" to a committing judge's decision. In re Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007). We must defer to the committing judge's decision unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

There is no abuse of discretion here. We are satisfied that the evidence clearly and convincingly established that W.O. is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined. We therefore affirm W.O.'s involuntary commitment under the SVPA substantially for the reasons stated by Judge McLaughlin in his comprehensive oral decision.

We reject W.O.'s contention that Drs. DeCrisce and Paolillo improperly considered W.O.'s 1995 arrest for criminal sexual conduct, which did not result in a conviction, and his argument that they should not have relied upon expert reports prepared by other professionals in reaching their diagnoses. When conducting their evaluations, psychiatrists and psychologists may rely on police reports, presentence investigation reports, as well as past psychological and psychiatric evaluations pursuant to N.J.R.E. 702 and 703 in their risk assessment analyses. "An expert is permitted to rely on hearsay information in forming [his or her] opinion concerning [an individual's] mental state." State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001). While the rule should not serve as a vehicle for the wholesale admissibility of otherwise inadmissible evidence, such testimony is admissible if it is of a type the experts in the relevant field of practice rely on in arriving at their conclusions. In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004).

W.O. was arrested on a charge of criminal sexual contact in 1995 after he approached a woman on the street and put her in a "bear hug." The woman alleged that W.O. groped her breasts as she attempted to break free. The charge was later downgraded to harassment and then dismissed. While both experts mentioned the incident in their reports and testimony, it clearly did not form the primary basis for their conclusions. In addition, Judge McLaughlin relied upon W.O.'s convictions for aggravated sexual assault and lewdness observed by children, rather than the 1995 incident, in determining that W.O. was a sexually violent predator.

Finally, Drs. DeCrisce and Paolillo testified without contradiction that the documentary records and reports they reviewed were the type of information experts typically utilize in the fields of psychiatry and psychology. Ibid. Each expert also confirmed that they reached their own independent conclusions based upon their review of the available information.

A

1 In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid.