S. IN THE MATTER CIVIL COMMITMENT OF M.N.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5775-02T25775-02T2

A-0425-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.N.A., SVP-

307-03.

 

Submitted: December 21, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Number SVP-307-03.

Yvonne Smith Segars, Public Defender, attorney for appellant M.N.A. (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa F. Nemeth and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

In these consolidated cases, in A-5775-02T2, M.N.A. appeals from a judgment entered on June 23, 2003, finding that he is a sexually violent predator in need of involuntary civil commitment under the Sexual Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committing him to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons committed pursuant to the SVPA. In A-0425-04T2, M.N.A. appeals from a judgment entered on September 7, 2004, after a review hearing, continuing his commitment under the SVPA, and scheduling a review hearing for August 18, 2005. The following factual and procedural history is relevant to our consideration of the arguments advanced on these appeals.

M.N.A., who was born on April 22, 1981, was convicted of fourth-degree criminal sexual contact on February 19, 2003, and was sentenced to the Adult Diagnostic and Treatment Center (ADTC) for a term of eighteen months. Because he received 512 days of jail credit for time served, M.N.A. was scheduled to max out on his sentence on March 17, 2003.

On March 11, 2003, the State filed a petition in the Law Division, seeking the involuntary civil commitment of M.N.A. under the SVPA. The petition was supported by the clinical certificates of psychiatrists Vivian Schnaidman and Howard Gilman dated March 10, 2003. Dr. Schnaidman diagnosed M.N.A. as suffering from paraphilia, NOS, and major depression in remission on Axis I, and a personality disorder NOS on Axis II. Dr. Gilman diagnosed M.N.A. as suffering from pedophilia, sexually attracted to boys, non-exclusive type, and depression NOS, on Axis I, and a personality disorder NOS with antisocial features on Axis II. Both concluded that M.N.A. had serious difficulty in controlling his sexually inappropriate impulses, and that there was a significantly elevated risk that he would sexually reoffend if released.

In addition to the predicate offense, M.N.A. had several juvenile offenses. In February 1997, he was charged with stalking an eight year-old boy in a restroom, asking to see his "dick." After the boy reported the incident to the police, M.N.A. was charged with harassment; however, the charge was ultimately dismissed.

In August 1997, M.N.A. was charged with several counts of aggravated assault and aggravated criminal sexual contact, including committing acts of oral and anal sex with a minor. Before he was charged with those offenses, M.N.A. had reported that he had oral sex with his adoptive father's eight year-old great-nephew, repeatedly abused a six year-old male cousin, and had sexually abused his adoptive father's six year-old grand niece. M.N.A. also reported being sexually assaulted by his adoptive father.

Based on these charges, he was adjudicated delinquent on February 11, 1998, for endangering the welfare of a child and was placed in Milestones, a residential sex-offender program. He was discharged for touching other boys in the program. After violating probation, M.N.A. was committed to the Juvenile Justice Commission for two years. It was during that time that he committed the predicate offense.

On or about May 22, 2001, M.N.A. was charged in Burlington County Indictment Number 2002-05-639 with two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts one and three); second-degree sexual assault, N.J.S.A. 2C:14-1c(4) (count two); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count four). Pursuant to a plea agreement entered into on February 19, 2003, M.N.A. pled guilty to the fourth-degree criminal sexual contact charge in count four, and was sentenced on that date to an eighteen-month term of imprisonment, to be served at the Adult Diagnostic Treatment Center (ADTC). Defendant was given 512 days of credit for time served. Counts one, two and three of the indictment were dismissed.

As noted, prior to his release from the ADTC the State filed the petition seeking the involuntary civil commitment of M.N.A. pursuant to the SVPA. An order for temporary commitment of M.N.A. under was issued on March 12, 2003, scheduling a final hearing for April 1, 2003.

A rescheduled final hearing was conducted in the Law Division before Judge Serena Perretti on June 23, 2003. Dr. Luis Zeiguer, a psychiatrist, testified that he examined M.N.A. on June 17, 2003. Based on his review of various records and reports, including the ADTC evaluation, and his clinical examination, Dr. Zeiguer diagnosed M.N.A. as suffering from "paraphilia NOS including an attraction towards people underage to consent, but also towards prepubescent boys and girls[,]" on Axis I. On Axis II, Dr. Zeiguer diagnosed M.N.A. as having "a personality disorder with narcissistic traits."

Dr. Zeiguer noted that M.N.A. had a "really early start [of a] persistent pattern of being aroused by prepubescent boys and, according to him, also girls." He stated that the paraphilia and personality disorder act in conjunction, explaining that if M.N.A. was

less self-centered, more submissive to social convention and more anxiety prone, he would have managed to inhibit this and to suppress it. I think he has a sense of entitlement of being right, which allows him to go through with this although he knows that he's going against convention.

In assessing the risk of M.N.A. to society, Dr. Zeiguer concluded that it was highly likely that he would reoffend if released, explaining:

Well, we have the early start, the deviant arousal that he's not able to inhibit. We have one offense with a prepubescent that he self-reported to Dr. Allen, and he confirmed to me the self-report to Dr. Allen. So we have that. Then we have the difficulties in controlling his behavior while in a residential treatment environment.

Dr. Robert S. Carlson, a psychologist, conducted a psychological examination of M.N.A. on June 19, 2003, including the administering of various psychological tests. He also diagnosed M.N.A. as suffering from paraphilia NOS, with an impulse control disorder. Dr. Carlson testified that M.N.A. could benefit from treatment. However, Dr. Carlson cautioned that at this point he poses a "significant to severe[]" risk to reoffend, explaining:

I think that there are still a number of foundational issues, if you will, and those are issues to do with his character, with his sexual identity, with his capability of controlling his impulses that are impaired at this point in time. However, I think that again his appropriate level of motivation to attend to these issues, I think that modifications are definitely possible for him, but there's a great -- and let me not minimize that.

I believe that there's a great deal of work to do, a great deal of difficult work to do. He's got a bad personal history, and I think even he can talk about him using his personal victimization as a crutch, as a crutch to justify . . . his sexual acting out, and there's a lot of painful, painful stuff that [M.N.A.] has to take a look at that's going to be very difficult for him, and it's going to be a significantly long process of putting things back in place that will result hopefully in mitigating his risk to a safe level.

No witnesses were produced by M.N.A. After considering the testimony, evidence and arguments of counsel, the judge issued an order on June 23, 2003, committing M.N.A. to the Special Treatment Unit (STU) for the custody, care and treatment of sexually violent predators, and scheduling a review hearing for June 9, 2004. In reviewing and analyzing the evidence presented at the hearing, the judge stated in pertinent part:

Based upon all of the evidence, the testimony and exhibits, which were not contradicted, I am clearly convinced that [M.N.A.] is a sexually violent predator, that he suffers from abnormal mental conditions and personality disorders that adversely affect his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexually violent acts.

I find that it his highly likely that he will commit sexually violent acts in the foreseeable future if not restrained here for care and custody, and I find specifically that the respondent has very great difficulty controlling his impulses. This is based not only upon the expert testimony that I heard today buy also the finding of the sentencing court that he is a compulsive and repetitive sex offender and was as recently as just last year.

On July 8, 2003, M.N.A. filed a notice of appeal from the June 23, 2003 order, docketed as A-5775-02T2.

The adjourned review hearing was conducted on September 7, 2004, before Judge Perretti. Dr. Schnaidman conducted a clinical interview of M.N.A. on August 5, 2004. Additionally, Dr. Schnaidman stated she also reviewed various reports, history and evaluations concerning M.N.A., explaining:

It's important because the best way that you can get a picture of the individual is by looking at him and his own personal history over the course of his life, if possible. This is true for sex offenders, and it's true for anybody. If someone walks into private practice complaining of depression, the first thing you do is you get a history and you find out when the person was depressed in the past, what his family history is, and what kind of losses he's experienced, and, you know, all the other little details . . . that a psychiatrist approaches every new case. And the first thing that you do is you place the day that you're seeing the person in the context of his whole life.

When asked how she uses the past history, Dr. Schnaidman stated:

Well, they . . . help to round out the picture of the person's behavior and clinical presentation over time. So while I wouldn't just blindly accept somebody else's diagnosis, it does indicate to me how the person looked on the date . . . that diagnosis was documented, and that's helpful in making an assessment.

Dr. Schnaidman diagnosed M.N.A. as suffering from paraphilia NOS, with a

feature of hebophilia which is attraction to teenagers, pedophilia attraction to children, and promiscuity which is not a DSM diagnosis, but it's descriptive in his case because . . . he needs to be able to not be promiscuous in order to progress through all different treatment stages. . . .

Dr. Schnaidman also diagnosed M.N.A. as suffering from a history of a major depression. Dr. Schnaidman concluded that M.N.A. was "highly likely to reoffend at this point in time if he were to be unsupervised and left to his own devices." Dr. Schnaidman also noted that actuarial sex offender psychological testing of M.N.A. indicated he was at a high risk for reoffending, which was consistent with the conclusions she reached from her clinical examination. In explaining why M.N.A. required continued commitment, Dr. Schnaidman stated:

I believe that he has much more treatment to complete. And as I see [M.N.A.], . . . my opinion is that he is one of the people who with appropriate treatment could do very well, but he needs to finish the treatment.

* * * *

And, right now, we're giving him a lot of support in controlling himself, but yet in treatment he has not addressed some of the core issues that his therapist and I also believe he needs to address in order to . . . [g]et over the hump . . . and really kind of integrate everything that he's learned in treatment and put it together and move on. He needs to be a lost more secure with his own sexuality. . . . I think in his case he needs to have some really solid self esteem that will help him to resist the temptation of inappropriate sexual behavior or inappropriate sexual contact when they present themselves in life. And I think that if he finishes the treatment he will, I hope -- but from what I see I think that he will be able to integrate those things.

Dr. Gregory Gambone, a clinical psychologist, and member of the STU's Treatment Progress Review Committee (TPRC), also testified. He explained that the TPRC is a panel of psychologists whose "task is to talk with treatment providers, interview the residents, review the record and make recommendations about the level of progress that a resident is at and make recommendations about the level of treatment that they should be in." Dr. Gambone noted that the TPRC reviews each resident on a yearly and six-month interim basis.

Dr. Gambone stated that the TPRC recommended that M.N.A. be elevated from Phase II to Phase III of the STU's treatment protocol, explaining that "Phase III is really the core phase of treatment where we expect residents by that point to be thoroughly engaged in treatment[.]" Dr. Gambone testified that although M.N.A. performed well in Phase II, he could not be advanced to Phase IV or V because "this is a staged [treatment] program in which progress is contingent upon completion of progress in the last phase."

M.N.A. produced no witnesses or evidence. Judge Perretti issued an order on September 7, 2004, continuing his involuntary commitment as a sexually violent predator. In doing so, the judge made the following findings and conclusions, in pertinent part:

Dr. Schnaidman testified, and her report contains a statement of her diagnoses. She diagnosed paraphilia NOS, history of major depression NOS, disruptive behavior disorder not otherwise specified in remission and she, in her testimony, gave her reasoning and discussed the diagnoses in length.

In spite of [M.N.A.'s] attorney's suggestions to the contrary based on his own opinion as to psychiatric diagnoses, the court has not heard anything to contradict the testimony of the psychiatrist, Dr. Schnaidman; her testimony stands undisputed.

Her report indicates that she reviewed a substantial amount of outside sources, and her sources of information are listed at page 2 of her report and continue to the following page. She explained in the course of her testimony the reasons why she and other psychiatrists, in the usual course of their professions, rely upon or review this outside information. It affords, according to her, the history of the person, a picture of the individual over a lifetime. They, the documents, the sources place the person in the context of his live, and these she explained, the listed sources are the usual kind of documents referred to in her profession.

She explained that she looks at the reports of other experts which she does not accept blindly, but she looks at them because they give a picture of how the person under evaluation presented himself to experts on past dates. This is a part of the history of the person which she said is the first thing that a psychiatrist considers, whether it's an evaluation or whether it's for purposes of treatment, the psychiatrist must first look at the history, and this she did in the usual professional manner.

* * * *

I find that Dr. Schnaidman did not base her opinion on the documentary sources, she used them for background as I used them for background. Her opinion, as she stated, was based on her personal experience with the respondent which provided her with independent basis for her evaluation.

* * * *

Dr. Schnaidman not only had the opportunity to interview [M.N.A.] for an hour and a quarter for purposes of preparation of her testimony and her report, she was also one of the certifying psychiatrists[.] . . .

* * * *

The psychiatrist points out that if her were released without adequate techniques to avoid reoffending he would be faced with all the stresses of life outside, he has no outside support system, he is effectively orphaned. He would be faced not only with no support system, but he would be faced with the stresses of making a living, of finding a place to live, of making associations, of reestablishing himself, and this would place him without adequate support in a very real risk of reoffending. In think this is [a] perfectly logical observation by Dr. Schnaidman, not really arguable.

In addition, there is the added risk factor that [M.N.A.] has the history of being terminated three times from sex offender treatment because he was sex offending during treatment. This does not make . . . the court feel confident at this time that he can simply be discharged. This is not conceivable at this time.

I'm satisfied that the evidence here has been clear and convincing that [M.N.A.] currently suffers from an abnormal mental condition that adversely impacts his cognitive emotional and volitional capabilities in such a way as to predispose him to commit sexually violent acts. I find that he has currently substantial difficulty controlling his sex offending behavior.

* * * *

I'm satisfied that there is a substantial difficulty of controlling his behavior, and I'm satisfied that it is highly likely at this time that [M.N.A.] will reoffend.

On September 21, 2004, M.N.A. filed a notice of appeal from the September 7, 2004 order. On January 6, 2005, we entered an order consolidating both appeals.

On appeal, M.N.A. presents the following arguments for our consideration:

POINT I

THE COURT ERRED IN THE INITIAL COMMITMENT HEARING IN RELYING ON THE OPINIONS OF DRS. ZEIGUER AND CARLSON AND IN THE REVIEW HEARING IN RELYING ON THE OPINIONS OF DR. SCHNAIDMAN BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS.

POINT II

THE ADTC EVALUATION PREPARED BY A NON-TESTIFYING EXPERT CONSTITUTES HEARSAY, DOES NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS AN EXHIBIT AT TRIAL.

POINT III

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.N.A. REMAINED A SEXUALLY VIOLENT PREDATOR IN NEED OF CONFINEMENT.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002) (quoting N.J.S.A. 30:4-27.26). Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." In re Civil Commitment of E.D., 353 N.J. Super. 450, 455 (App. Div. 2002), rev'd on other grounds, 183 N.J. 536 (2005); see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.

Our review of a commitment pursuant to the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the orders under review. The final order of commitment of June 23, 2003, and the order of continued commitment issued on September 7, 2004, are adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

The evidence supports the finding that M.N.A. has not, as yet, made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34b. The conclusions of the court at both hearings that M.N.A. continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to reoffend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.

M.N.A.'s contention that the trial court improperly relied on hearsay evidence is without merit. "[O]pinions of the non-testifying experts" may not be "bootstrapped into evidence through the testimony of the testifying experts," In re Commitment of E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004). Nonetheless, admission of complex diagnoses pursuant to N.J.R.E. 703 must be distinguished from admission of factual information reported in treatment records pursuant to N.J.R.E. 808. See id. at 575-76. As we noted in In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492, n.7 (App. Div. 2005), records of actual treatment at the STU are a more traditional subject for N.J.R.E. 703 admissibility and an acceptable evidential basis for factual findings about the need for commitment. We have never suggested that statements made to an expert or official by a person subject to commitment are inadmissible or an improper basis for an expert opinion. See A.E.F., supra, 377 N.J. Super. at 490-92. The record discloses that the experts offered by the State did not rely to any significant degree upon the clinical reports of experts who did not testify, but rather offered their own opinions based on their clinical evaluation of M.N.A. in light of a detailed examination of his criminal history, treatment records and prior mental health evaluations. Ibid.

 
Affirmed.

Not Otherwise Specified

(continued)

(continued)

17

A-5775-02T2

RECORD IMPOUNDED

 

January 4, 2006