IN THE MATTER OF CIVIL COMMITMENT OF W.M.V.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1069-03tT21069-03T2

IN THE MATTER OF CIVIL

COMMITMENT OF W.M.V.

(SVP 312-03)

________________________________

 

Submitted December 5, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-312-03.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Thomas G. Hand, Designated Counsel,

of counsel and on the brief).

Peter C. Harvey, Attorney General of New Jersey,

attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood and

Cheryl R. Clarke, Deputy Attorneys General, on

the brief).

PER CURIAM

Appellant, W.M.V., appeals from a judgment entered on September 10, 2003, ordering his commitment at the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that his involuntary commitment under the SVPA violates the ex post facto clauses of the federal and state constitutions, is unsupported by competent evidence, and is based on impermissible hearsay. We disagree, and affirm.

At time of commitment, W.M.V. was forty-four years of age, with a diagnosis of pedophilia and a lengthy history of criminal sexual conduct. On August 5, 1986, he pled guilty to sexual assault upon his three-and-one-half year old son, for which he was sentenced to seven years in state prison. At the time, he was found ineligible for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. W.M.V. was paroled on March 8, 1988, and thereafter arrested on September 29, 1993, for sexually molesting two brothers, six-year-old R.A.B., and eight-year-old J.B., who were sons of a girlfriend with whom he was living. By his own admission, this molestation involved multiple instances of oral sex with both boys and anal sex with one of the boys. Consequently, W.M.V. pled guilty to two counts of first-degree aggravated sexual assault and was sentenced to two concurrent fifteen-year terms, with five years of parole ineligibility, to be served at the Adult Diagnostic Treatment Center (ADTC), because, upon examination, W.M.V.'s actions were found to be part of a "compulsive, repetitive pattern of pedophilic behavior."

W.M.V. has an admitted history of alcohol and marijuana abuse. He is also learning disabled. In fact, on December 8, 2002, W.M.V. was evaluated by Dr. Hilton Miller who concluded that W.M.V.'s gains in treatment at the ADTC were restricted by his cognitive limitations and that he would have difficulty determining high-risk situations. This opinion was buttressed by the evaluation of Dr. Howard Gilman, who concluded that W.M.V.'s "cognitive limitations and his lack of social support is a potentially destructive combination that offers little protection for the recurrence of pedophilic urges and acting out when he is confronted with stressful situations".

In view of W.M.V.'s pending release from prison, the State filed a petition for civil commitment under the SVPA. W.M.V. was temporarily committed to the STU, and a commitment hearing was held on September 3, 2003. At the hearing, the State presented two experts, Dr. Charles P. Gnassi, M.D., a psychiatrist, and Dr. Robert Carlson, a psychologist, and W.M.V. presented Dr. Barry Katz. All three experts concurred in the diagnosis of pedophilia and that, on the basis of testing, W.M.V. presented a moderate-to-high level risk to the community. Even Dr. Katz conceded that W.M.V. was not ready to be released and should continue in-patient treatment for another six months. Indeed, this consensus of opinion led the trial judge to remark: "[n]o one in this testimony has told me that [W.M.V.] should not be here."

In addition, Dr. Gnassi, who interviewed W.M.W. on two occasions, also diagnosed appellant with personality disorder NOS, who had "a long history of sexual preoccupation and attraction to children where he commits sexual offenses" and was at a high risk to reoffend. According to Dr. Gnassi, W.M.V. could not identify his triggers in life situations, either internal or external, so he would not be able to prevent sexually deviant behavior. Dr. Gnassi thus opined that W.M.V. suffered from a personality disorder that makes him likely to engage in acts of violence if not confined to a secure facility for care and treatment.

Dr. Carlson, who also interviewed W.M.V., diagnosed him

with pedophilia based on his behavioral history and a "simmering awareness of sexual arousal to young males . . . ." Although W.M.V.'s progress and treatment at the ADTC had been positive, his deviant sexual arousal continues to exist. As did Dr. Gnassi, Dr. Carlson also diagnosed W.M.V. with personality disorder based on his lack of self-esteem, which could impact his "potential for sexual re-offense". Dr. Carlson thus concluded that W.M.V. was appropriately committed under the SVPA.

At the conclusion of the hearing, Judge Perretti concluded that the State demonstrated by clear and convincing evidence that W.M.V. was a sexually violent predator who is highly likely to recidivate and has "grave problems with self control." She reasoned:

All of the testimony, including the advice of Dr. Katz, persuades me that [W.M.V.] continues to be -- is a sexually violent predator. The evidence is clear and convincing. [W.M.V.] suffers from abnormal mental conditions and personality disorders that adversely impact his volitional, cognitive, and emotional capacities so as to predispose him to commit sexually violent acts. I find that it is highly likely that he will recidivate and, in addition, I find that he has, at the present time, grave problems with self control.

Accordingly, Judge Perretti committed W.M.V. to the STU, with a review hearing to be held in one year.

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," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-33. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

It is by now well-settled that the SVPA is civil, not criminal, legislation and that commitment thereunder is not punitive, but rather subject to an independent regulatory process imposed for the purposes of treatment and protection of the public. N.J.S.A. 30:4-27.34b; In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002); In re Commitment of P.C., 349 N.J. Super. 569, 579-80 (App. Div. 2002); In re Commitment of J.P., 339 N.J. Super. 443, 461 (App. Div. 2001). Inasmuch as the legislative intent underlying the SVPA remains regulatory, State v. Mumin, 361 N.J. Super. 370, 385 (App. Div. 2003), overruled o.g., State v. Bellamy, 178 N.J. 127 (2003), we find no violation of the ex post facto clauses of either the federal, U.S. Const. art. I, 10, cl. 1, or state, N.J. Const., art. IV, 7, 3, constitutions, which prohibit statutes that either "(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." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925)).

We also find that Judge Perretti's findings are amply supported by the record. On this score, it is also well-settled that 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 accorded the 'utmost deference' and modified only where the record reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459 (citing State v. Fields, 77 N.J. 282, 311 (1978)). See also 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 courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

We are satisfied from our review of the record that the judge's findings are amply supported by substantial competent credible evidence and that the admission of hearsay was not improper. As to the latter, it is clear that the use of hearsay as a basis for expert testimony and the hearing judge's evaluation of expert credibility is permissible. In re Civil Civil Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004). In fact, some hearsay is admissible for the truth of the matter asserted, such as treatment records, under N.J.R.E. 803(c)(6). See A.X.D., supra, 370 N.J. Super. at 202 (holding "[t]he 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"). Even a "complex diagnos[is]" contained in such reports may be "considered . . . as background in evaluating the opinions of the testifying experts, who testified that they considered these reports in reaching their own diagnos[is] . . ." Ibid.

"[A]n expert who [relies in part or even] substantially

. . . on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information 'was of a type reasonably relied on by experts in the particular field in forming opinions . . . on the subject.'" J.H.M., supra, 367 N.J. Super. at 612 (quoting N.J.R.E. 703); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). To be sure, "experts at the [civil commitment] hearing cannot simply parrot the findings of the doctors who author the clinical certificates." A.E.F., supra, 377 N.J. Super. at 491. However, reliance is not precluded "as long as the opinion ultimately rendered at the . . . commitment hearing is that of the [expert] witness based on his or her own evaluation of the committee, [the committee's] prior offenses, and objective test data. Id. at 492.

Here, the State's testifying experts did not rely to any significant degree on the clinical evaluation of other professionals, but offered their own opinions based on a detailed examination of W.M.V.'s criminal history, objective data from psychometric tests they administered to him, and interviews they personally conducted of him. To the extent the State's testifying medical experts relied on prior mental health evaluations of W.M.V., they were the reports of professionals who had actually treated W.M.V., unlike the medical experts in In re Civil Commitment of E.S.T., who relied solely on the opinions of "non-testifying experts [who] simply rendered a forensic opinion based on records and a brief interview with [the committee]." 371 N.J. Super. 562, 573 (App. Div. 2004). Indeed, both Dr. Gnassi and Dr. Carlson testified that the reports of treating professionals were the type of information they would ordinarily rely on to assist them in reaching a diagnosis. Moreover, Judge Perretti was entitled to consider such reports in the course of weighing the credibility of the testifying experts. Vandeweaghe, supra, 351 N.J. Super. at 480. And finally, the testifying State experts were available to W.M.V for cross-examination, and W.M.V. was not prohibited from calling the treating psychiatrists or psychologists, who authored the reports relied on by Dr. Carlson and Dr. Gnassi, to testify.

To the extent that W.M.V.'s hearsay claim relates to information contained in documents such as presentence reports and police reports, we have consistently rejected similar challenges. E.S.T., supra, 371 N.J. Super. at 576 (J.H.M., supra, 367 N.J. Super. at 611-14). In J.H.M., we held "the introduction of . . . presentence reports [and other investigative materials] was proper since such evidence was of a type reasonably relied on by mental experts in formulating their evaluations of an individual's mental condition." J.H.M., supra, 367 N.J. Super. at 612. Such hearsay material must not be considered substantively, "but only as a basis for the expert's opinion." E.S.T., supra, 371 N.J. Super. at 576. Here, Dr. Carlson specifically testified that the purpose of reviewing these documents was to obtain a history of what happened to W.M.V. through the years. He explained that such "documents are critical in order to give a factual and historical basis in terms of understanding a person's behavior".

In sum, we find no error in the court's evidentiary rulings which "are entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We are satisfied that the substantial competent credible evidence supports the court's findings and accordingly, we affirm substantially for the reasons stated by Judge Perretti in her oral opinion of September 10, 2003.

Affirmed.

 

(continued)

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10

A-1069-03T2

RECORD IMPOUNDED

December 28, 2005