IN THE MATTER OF CIVIL COMMITMENT OF A.C.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0116-03T20116-03T2

IN THE MATTER OF CIVIL

COMMITMENT OF A.C.S.

(SVP-228-02)

_________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, SVP-228-02).

Yvonne Smith Segars, Public Defender, attorney for appellant, A.C.S. (Richard Sparaco, designated

counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent, State of New Jersey

(Patrick DeAlmeida, Assistant Attorney General,

of counsel; Mary Beth Wood and Melissa E. Hager,

Deputy Attorneys General, on the brief).

PER CURIAM

A.C.S. appeals from the July 3, 2003 final order finding him to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to

-27.38, and committing him to the Special Treatment Unit (STU) for one year with a one year review hearing scheduled on June 15, 2004. On appeal, A.C.S. argues that the State presented insufficient evidence to support his commitment, relied on hearsay, and failed to provide timely discovery. We have thoroughly reviewed the record, and we find appellant's arguments lacking in merit. We are satisfied the judge's findings are amply supported by the record. Accordingly, we affirm.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 130, 132-33. See also In Re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Within a six-month period, between July 1983, and January 1984, A.C.S. committed a series of seven sexual assaults ending only upon his arrest. As a result, on a State indictment, A.C.S. pleaded guilty on September 18, 1984, to three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a); and one count of first-degree robbery, N.J.S.A. 2C:15-1. On November 5, 1984, he pleaded guilty to one count of assault with intent to commit rape on a federal indictment. On the federal plea, A.C.S. was sentenced to a fifteen-year prison term, and upon completion of service of that term in 1993, he was transferred to Southern State Correctional Facility to complete service of his State prison term. A.C.S. was set to "max out" his State sentence on February 4, 2002. On January 31, 2002, A.C.S. was ordered temporarily committed to the STU.

At the January 24, 2003 commitment hearing, Drs. Stanley R. Kern and Robert S. Carlson testified for the State. Dr. Kern, who interviewed A.C.S. on three occasions, diagnosed A.C.S. with personality disorder, NOS; paraphilia, NOS; sexual sadism; and alcohol and cannabis abuse. In Dr. Kern's view, A.C.S.'s use of weapons and violence against his victims after the sexual assaults had occurred was unnecessary and sadistic. Dr. Kern also found significant A.C.S.'s two serious institutional infractions - assault and possession of narcotic paraphernalia and drugs - and his refusal to transfer to the Adult Diagnostic and Treatment Center (ADTC) where he could have received sex offender therapy. Although A.C.S. made some progress into his sexually offending behaviors, he never received sex offender-specific therapy and, according to Dr. Kern, remains untreated, posing a high risk to reoffend if released into the community in his current condition. Based on his diagnoses, Dr. Kern concluded that A.C.S. is predisposed to commit sexually violent acts, has serious difficulty in controlling his sexually violent behavior, and poses a threat to the health and safety of others.

Dr. Carlson, who also interviewed A.C.S., essentially agreed with this conclusion. He diagnosed A.C.S. with an anti-social personality; paraphilia, NOS; alcohol and cannabis abuse; and behavioral problems stemming from rage and anger targeted directly at women. In Dr. Carlson's view, had A.C.S. not been arrested, his "very intense period . . . of significant violent sexual acting out" would have continued in much the same manner. And although A.C.S. may have received therapy over the years for anger management, Dr. Carlson found no evidence that A.C.S. ever received sex offender specific treatment and, in fact, found it significant that A.C.S. did not take advantage of such a program at the ADTC when available.

According to Dr. Carlson, A.C.S. has a poor prognosis because he blames others for his problems, has little or no motivation to change, and is likely to enter treatment only to avoid or reduce external pressure. Dr. Carlson also found A.C.S. would be a significant risk if he were to be released given his violent and intense sex offense history, relatively high actuarial scores, and current status as a generally untreated sex offender. Dr. Carlson opined that A.C.S.'s mental condition predisposed him to commit acts of sexual violence which affect his volitional, emotional and cognitive capabilities, and that in the absence of sexual offender specific therapy, A.C.S. is at significant risk to reoffend.

A.C.S. testified at the hearing and admitted to committing the sexual assaults in 1983. He claimed, however, to have undergone individual therapy while in federal prison, but did not state that he had sexual offender specific therapy. He further explained that he did not adhere to the recommendation of the New Jersey Parole Board to transfer to the ADTC for such therapy in 1995 because Southern State Correctional Facility, where he was incarcerated, was much closer to home than ADTC.

At the conclusion of the plenary hearing, the court found, by clear and convincing evidence, that A.C.S. was a sexually violent predator, highly likely to reoffend, and in need of commitment because he is an untreated sex offender. Specifically, Judge Freedman found that A.C.S. "clearly suffers from mental abnormality and personality disorder." He described A.C.S. as totally self-centered, interested in his own feelings of pleasure, unempathetic and uncaring about the rights of anyone else. Furthermore, A.C.S.'s drug and alcohol abuse would act as disinhibitors to his deviant sexual arousal. Judge Freedman found, based on the State's expert testimony, that were A.C.S. to be released, there would be a high likelihood of reoffense with a serious potential of injury, or death beyond the sexual assaults themselves.

In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be given the "'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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 48 (1996).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We affirm substantially for the reasons stated by Judge Freedman in his oral opinion of July 3, 2003.

We are also satisfied that Judge Freedman properly permitted the State's testifying experts to utilize pre-sentence investigation reports, police reports, and the reports generated by prior psychiatric and psychological evaluations. These are precisely the type of records relied upon by experts in the fields of psychiatry and psychology in arriving at their own independent diagnosis and opinions. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); J.H.M., supra, 367 N.J. Super. at 612; N.J.R.E. 703.

In A.X.D., we stated:

In significant aspects, the reports themselves were admissible for their truth under applicable exceptions to the hearsay rule. See N.J.R.E. 805. The reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth insofar as they factually reported A.X.D.'s statements or refusals to discuss certain issues. A.X.D.'s statements made to the treatment team (including his refusal to discuss certain important issues) were admissible as statements of a party. N.J.R.E. 803(b)(1).

[Id. at 202.]

In A.X.D., we further recognized that the trial judge was entitled to consider A.X.D.'s records in the course of weighing the credibility of the testifying experts. Ibid.

Similarly, the introduction of pre-sentence reports is proper since such evidence is of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition. J.H.M., supra, 367 N.J. Super. at 612. So too, a court may accept the records made by police officers "as reliable insofar as they relate that [the victim] actually told the story to [the officer]." In re Registrant, C.A., 146 N.J. 71, 98 (1996).

Here, Judge Freedman made it clear that the admission into evidence of the non-testifying experts' reports was for a limited purpose. It is equally clear that the State's testifying experts formed their own opinions based on their interviews and evaluations of A.C.S., and that each was subject to full cross-examination by counsel for A.C.S. Under the circumstances, we find no error in any of the evidentiary rulings of the trial judge.

We also find no merit to A.C.S.'s belated assertion that the State did not produce all of the documents relied upon by its experts at trial. In the first place, the issue was never raised below and, therefore, is not properly before us on appeal. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Secondly, many of the reports and records referred to by the testifying experts were provided to A.C.S.'s counsel, and A.C.S. has demonstrated no prejudice from any claimed omission. In any event, the State's expert witnesses were fully available to A.C.S. for cross-examination. Moreover, A.C.S. neither sought to have any of the doctors, whose reports were mentioned by Drs. Kern and Carlson, testify, nor produced any records on his own behalf of, among other things, any sex-specific therapy treatment. And finally, as previously noted, any such omitted documents were not relied upon exclusively to form the expert opinions of the State's testifying witnesses. In a word, A.C.S. was afforded a full and fair hearing and suffered no prejudice.

 
Affirmed.

(continued)

(continued)

9

A-0116-03T2

RECORD IMPOUNDED

December 30, 2005