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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.W. SVP-559-10.

________________________________________

January 16, 2014

Argued December 2, 2013 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-559-10.

Joan D. VanPelt, Designated Counsel, argued the cause for appellant K.W. (Joseph E. Krakora, Public Defender, attorneys; Thomas G. Hand, Designated Counsel, on the brief).

David DaCosta, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

K.W. appeals from an order entered on April 28, 2010, finding that he continues to be a sexually violent predator in need of involuntary civil commitment and committing him to the State of New Jersey Special Treatment Unit (STU) until his next review. We affirm.

I.

K.W. has a long criminal history that began at the age of fourteen. From 1979 to 1981, he was arrested eight times and adjudicated as a juvenile for assault, criminal mischief, possession of a weapon, incorrigible, and fighting.

In September 1982, A.H. reported to Wildwood Police that K.W. had entered her home, pulled back her bed covers, and climbed on top of her. She claimed he then put his fingers in her ribs and told her if she screamed he would break them. She screamed anyway and he ran from the house only to return to ask A.H. and her mother not to report the incident to the police. When A.H. went to the police, K.W. followed her and was arrested. K.W. was charged with burglary and criminal sexual contact, but the charges were eventually dismissed.

While being questioned on A.H.'s allegations, K.W. was also questioned regarding a gang rape and robbery. K.W. admitted that he and four other men dragged an intoxicated woman from her car into the woods, had sexual intercourse with her, and forced her to perform oral sex. He also admitted that he stole her ring. K.W. was charged with sexual assault and robbery as a juvenile, but the matter was waived to the Law Division. On September 22, 1983, K.W. pled guilty to both charges and was sentenced to six years in prison. He was released on parole on April 2, 1985.

On October 5, 1985, K.W. was arrested and charged with sexual assault and endangering the welfare of a child. G.M., age ten, who was the niece of K.W.'s fiancée, reported to the police that she was sleeping on the living room floor when she heard a person come in through the front door. She was lying on her stomach with a blanket pulled over her head when the person felt her breast and tried to turn her over, but was unable to do so. She claimed the person pulled the blanket off her and tried to insert his penis into her rectum. He then got up and she heard footsteps go into her aunt's bedroom.

G.M. told the police that she believed K.W. sexually assaulted her because the assailant never left the apartment and no one else was there. She also said her assailant was wearing jeans similar to K.W.'s. K.W. denied the allegation but eventually pled guilty to endangering the welfare of a child and was sentenced to two years of probation.

From 1986 to 1997, K.W. was charged with thirty-six offenses and convicted of twelve, including assault three times, resisting arrests five times, possession of marijuana, theft by deception, and obstruction of the administration of law twice. He was also charged with violating domestic violence restraining orders. In 1994, he was found not guilty by a jury of sexually assaulting an eleven-year-old girl and molesting her nine-year-old sister.

On July 2, 1998, the offense giving rise to this appeal occurred. R.E., who was nineteen or twenty at the time, reported to police that she woke up to find her boxer shorts pulled down and K.W. licking her genitals. She closed her legs, pulled her shorts up, and tried to push K.W. away. She attempted to get up but K.W. held her down. She began crying and yelling at him to leave her alone. After an hour, she escaped by telling K.W. she had to use the bathroom. She found a phone and called 911. K.W. grabbed the phone and hung up. When the dispatcher called back, K.W. said that there was no problem while R.E. shouted in the background, "it is a problem." K.W. then left.

K.W. was arrested for second-degree sexual assault. On December 21, 1999, K.W. was convicted, after a jury trial, of second-degree sexual contact. He was sentenced to eighteen years in prison with nine years of parole ineligibility, and subject to Megan's Law sex offender filing requirements and community supervision for life.

On March 1, 2010, the State filed a petition for an order of temporary involuntary civil commitment of K.W. pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A.30:4-27.24 to -27.38. In support if its petition, the State submitted two clinical certifications by psychiatrists Dr. Marina Moshkovich and Dr. Anasuya Salem. Both diagnosed K.W. with cognitive disorder or learning disabilities, not otherwise specified, alcohol abuse in institutional remission, and antisocial personality disorder. Dr. Moshkovich also diagnosed K.W. with cannabis use in institutional remission and a history of conduct disorder. Dr. Salem also diagnosed K.W. with paraphilia, not otherwise specified and borderline intellectual functioning.

On March 4, 2010, the Law Division found probable cause to believe that K.W. "suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not" committed. K.W. was temporarily committed to the STU pending a final hearing.

A different judge presided over K.W.'s commitment trial on March 24, 2010. The State presented the testimony of psychiatrist Dr. Alberto Goldwaser, while K.W. presented no evidence or testimony. K.W. stipulated to Dr. Goldwaser's qualifications as an expert witness.

Dr. Goldwaser attempted to examine K.W. on March 18, 2010, but K.W. refused, so Dr. Goldwaser relied on the discovery file and psychological reports of other experts to write his report and form his own opinion. Dr. Goldwaser testified that the sources he relied on were the type of information customarily relied upon by experts in the field of psychiatry conducting forensic evaluations.

Dr. Goldwaser diagnosed K.W. with paraphilia, not otherwise specified, and antisocial personality disorder. These diagnoses were based on K.W.'s history of sexual offenses that show "despite knowing that it's wrong . . . no regard for the other person's needs or the other person's right[s]." In addition, K.W. has eight children with six different women, which according to Dr. Goldwaser, is evident that he can have normal, consensual sexual relationships but chooses to engage in sexual violence. He added that K.W. reoffends

regardless of whether it was right or wrong, regardless whether it was causing pain, or suffering, or fear. And having no remorse whatsoever, to a point that right now he still denies doing it. And the only thing he admits is having done something, but again, there is no empathy, there is not feeling for the other person.

Based on these diagnoses, Dr. Goldwaser found K.W. to have "serious difficulty in controlling his sexually offending behavior[.]" Further, he has a lack of recognition and treatment of his paraphilia needs and antisocial personality. Dr. Goldwaser concluded that K.W. scored a seven on the Static-99 test, meaning he has a high risk of reoffending.

The court found by clear and convincing evidence that K.W. continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment, and ordered K.W. restrained and set a one-year review of his case.

On appeal, K.W. presents the following arguments:

point one

by allowing the state's experts' to base their diagnoses and conclusions on alleged facts established through inadmissible hearsay, the SVPA proceeding violated the fourteenth amendment of the united states constitution and new jersey constitution article 1, paragraph 10 (procedural due process, equal protection and substantive due process clauses).

a. application of criminal due process protections to civil cases.

b. the logic behind in [RE REGISTRANT,] c.a.[1]must be updated in light of new federal criminal law svpa hearings.

c. the state cannot evade the confines of apprendi/blakely/shepardthrough the backdoor of r.703.

d. at the svpa proceeding, the state's experts should only make diagnoses or draw conclusions from (1) the facts defendant has pled to or (2) hearsay supported by substantive proof.

e. the same court cannot act as both gatekeeper and fact finder in an svpa proceeding.

f. the svpa violates federal and state substantive due process.

point two

k.w.'s involuntary commitment under the svpa violates the united states constitution, article I, section 10, clause 1 and the new jersey constitution article iv, section 7, paragraph 3 (ex post facto clauses) because the expert's diagnoses are imprecise and the state has punished him for prior conduct (not raised below).

point three

the state failed to prove by clear and convincing evidence that k.w. should have been involuntarily committed.

a. standard of review.

b. the state failed to prove a mental abnormality.

c. the state failed to prove k.w. was highly likely to commit a sexual offense.

II.

"Review of a trial court's decision regarding a commitment hearing is extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (citing State v. Fields, 77 N.J. 282, 311 (1978)), certif. denied, 177 N.J. 490 (2003). The trial court's determination is given "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). "In re C.A., [ 146 N.J. 71 (1996)] therefore, affirmed the principle first enunciated in Doe v. Poritz [ 142 N.J. 1 (1995)] that the ultimate determination of a registrant's risk of reoffense and the scope of notification is reserved to the sound discretion of the trial court." In re Registrant G.B., 147 N.J. 62, 79 (1996).

K.W. argues that the State's expert witness, Dr. Goldwaser, based his conclusions on inadmissible hearsay. K.W. suggests that the holding in In re C.A., which applied criminal law safeguards to Megan's Law tiering cases, should be "updated" to require similar criminal law safeguards in SVPA proceedings so that evidence of nonconvictions should not be admissible to establish elements of civil commitments. We disagree.

In In re C.A., supra, the defendant pled guilty to third-degree aggravated criminal sexual contact and was sentenced to five years imprisonment. 146 N.J. at 86. Prior to his release, C.A. was notified that he would be classified as a Tier Three Megan's Law offender. Ibid. C.A. argued he should be classified under Tier Two and requested a hearing. Ibid. The trial court affirmed the Tier Three classification after considering some of C.A.'s charges that did not result in a conviction. Id. at 87. On appeal, we agreed that the nonconviction offenses could be considered and that documentary evidence could be used to evaluate those offenses, but remanded for a hearing because C.A.'s version conflicted with the documentary evidence. In re Registrant C.A., 285 N.J. Super. 343 (App. Div. 1995).

The Supreme Court approved the limited use of prior nonconviction offenses:

Balancing C.A.'s procedural due process rights and right to fundamental fairness with the community's right to protect itself against the risk that he may commit another sexual offense, we find that C.A.'s prior nonconviction offense may be considered in determining his tier classification and that the State may prove that offense solely by reliable documentary hearsay evidence.

[In re C.A., supra, 146 N.J. at 110.]

In State v. Bellamy, 178 N.J. 127 (2003), the Court rejected the argument that civil commitment under SVPA is a "direct and penal" consequence of a guilty plea. The Court held that "commitment pursuant to the [SVPA] is not a direct consequence of pleading guilty to a predicate sexual offense because commitment does not automatically flow from the conviction. . . . [C]ivil commitment under the [SVPA] is a collateral consequence of defendant's plea." Id. at 138.

Thus under C.A., we are satisfied that K.W.'s prior arrests were appropriately considered by Dr. Goldwaser and the court in assessing his risk of future sexual recidivism without violating his rights.

We also reject K.W.'s argument that the United States Supreme Court decisions in three criminal cases, all decided after C.A., Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), preclude the admission of nonconviction evidence to prove an element of civil commitment. In enacting the SVPA, "our Legislature intended to create a civil, rather than a penal, statute." In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, 563 U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011).

K.W. next challenges the reliance by the State's experts on hearsay reports, evaluations and other documents. It is well-settled that evaluating psychiatrists are allowed to rely on past reports and evaluations for their risk assessment conclusions. An expert who substantially relies on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information "was of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 703 (2013). "An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state." State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001). Specifically, "presentence reports [are] proper since such evidence [is] of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition." In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Prior expert opinions are admissible, as long as not substantive evidence, but only as a basis for the expert's opinion. In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004).

Contrary to K.W.'s assertions, independent evidence need not be presented establishing the truth of hearsay statements for an expert to rely upon them. See State v. Burris, 298 N.J. Super. 505, 511 (App. Div.) certif. denied, 152 N.J. 187 (1997).

Here, Dr. Goldwaser confirmed that the material he relied on is "the type of information that is customarily relied upon by experts in . . . the field of psychiatry conducting forensic evaluations[.]" In addition, Dr. Goldwaser testified that even if he did not consider the 1985 or 1994 offenses, he would still find that K.W. is "highly likely to recidivate sexually in the reasonably foreseeable future[.]"

We also note that K.W. refused to interview with Dr. Goldwaser. In In re Civil Commitment of A.H.B., 386 N.J. Super. 16 (App. Div.) certif. denied, 188 N.J. 492 (2006), we did not allow an individual to benefit from his unjustified refusal to cooperate with the evaluating doctor. Id.at 30. We held that such a refusal to cooperate with an evaluation results in a waiver of due process claims. Ibid.

K.W.'s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e). We are satisfied that the State proved by clear and convincing evidence that K.W. was a sexually violent predator who suffers from a mental disorder such that it is highly likely that he will reoffend if not committed.

1 146 N.J. 71 (1996).