IN THE MATTER CIVIL COMMITMENT OF R.X.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2146-03T22146-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.X.L., SVP-327-03.

__________________________________

 

Submitted January 11, 2006 - Decided January 30, 2006

Before Judges Fall and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP 327-03.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Patrick

DeAlmeida, Assistant Attorney General,

of counsel; Mary Beth Wood and Amy C.

Donlon, Deputy Attorneys General, on

the brief).

PER CURIAM

R.X.L. appeals from an order civilly committing him to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. Judge Freedman entered the order of commitment on December 5, 2003. We affirm substantially for the reasons stated by Judge Freedman in his oral decision of that date.

A person who has committed a sexually violent offense, as defined in N.J.S.A. 30:4-27.26, is subject to commitment under the SVPA. In re Commitment of W.Z., 173 N.J. 109, 120, 131 (2002) (quoting N.J.S.A. 30:4-27.26). A commitment order may be entered only if there is "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); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002); 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." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. Annual review hearings to determine whether the person remains in need of commitment despite treatment received at the STU are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.

R.X.L. was convicted of crimes that bring him within the purview of the SVPA -- aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a and sexual assault, contrary to N.J.S.A. 2C:14-2b. Both convictions were based on guilty pleas that R.X.L. entered on March 3, 1993. His victims were both male children under the age of seven; he admitted fondling one, a playmate of his son, and sodomizing the other, his son. At the time of his guilty plea, R.X.L. acknowledged that he was in need of special treatment. As required by N.J.S.A. 2C:47-1, R.X.L. was referred for psychological evaluation prior to sentencing. Based on the report of that evaluation, the sentencing judge found that R.X.L.'s conduct was "characterized by a pattern of repetitive, compulsive behavior" and he was amenable to treatment. The judge sentenced R.X.L. to a term of incarceration to be served at the Adult Diagnostic and Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-3. R.X.L.'s aggregate sentence was a term of seventeen years, five to be served without possibility of parole.

In anticipation of R.X.L's release from ADTC, in May 2003 the Attorney General filed a petition initiating this commitment proceeding. An order of temporary commitment was entered on May 23, 2003, and the commitment was tried to Judge Freedman on October 29, 2003. As noted above, the commitment order was entered on December 5, 2003. That order set November 4, 2004, as the date for R.X.L's annual review hearing. Although R.X.L. filed a notice of appeal on December 17, 2003, the Public Defender did not file a brief on his behalf until June 22, 2005. The State's responsive brief was not filed until October 24, 2005.

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 Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review, which is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).

R.X.L.'s most recent convictions were not his first convictions for sexually violent offenses. On February 27, 1978, he entered a plea of guilty to two charges of debauching the morals of a minor; one victim was a nine-year old and the other a thirteen-year old. R.X.L. was eighteen years old at the time. In addition, R.X.L. has reported that when he was a juvenile he engaged in sexual conduct with a child four to five years younger. He has admitted numerous other incidents of sexual contact with children. Although his accounts have not been consistent, he has identified by name as many as twenty children with whom he had been sexually involved during the period between 1969 and 1992.

Dr. Natalie Barone and Dr. Stanley Kern testified for the State. R.X.L. did not present any testimony or evidence. His attorney objected to admission of certain reports that include hearsay, such as pre-sentence reports and evaluations of R.X.L. by experts not testifying at the hearing. Judge Freedman ruled that he would consider the inadmissible hearsay in the reports relied upon by the testifying experts for the sole purpose of evaluating the basis of the testifying expert's opinion and not for the truth of the matters stated therein. See N.J.R.E. 703, 801(c), 808.

Dr. Barone is a psychiatrist. She attempted to evaluate R.X.L. two weeks prior to the hearing, but he declined to participate in the clinical interview or testing. She diagnosed R.X.L. as suffering from pedophilia and polysubstance abuse. Her diagnosis of pedophilia was based upon her review of R.X.L.'s criminal history and R.X.L.'s admissions to having as many as fifteen to sixteen victims, some family members and some not related to him. Her diagnosis of polysubstance abuse was based on R.X.L.'s admission to daily use of alcohol and marijuana over an eleven-year period. In Dr. Barone's opinion, both the prolonged and serious nature of the deviant conduct R.X.L. acknowledged, such as acts of penetration and forced fellatio, were indicative of a heightened risk of recidivism, especially because R.X.L. continued such conduct despite prior legal intervention. On that basis Dr. Barone determined that R.X.L. posed a high risk or recidivating. Her evaluation of the risk of recidivism was not dependent upon R.X.L.'s substance abuse, which she considered significant only to the extent that use of substances such as alcohol and marijuana diminish inhibitions.

Dr. Kern is also a psychiatrist. He saw R.X.L. on two occasions, June 12 and October 24, 2003. R.X.L. cooperated with Dr. Kern and participated in the clinical evaluation. Dr. Kern's diagnosis of pedophilia was based upon the early onset of R.X.L.'s behavior and the long period of time over which R.X.L. had committed sexual offenses against children. With respect to the impact of R.X.L.'s disorder relevant to the standard for commitment, Dr. Kern focused on: R.X.L.'s resistance to examining his anger about his own abuse by others and its relationship to his deviant sexual arousal; R.X.L.'s seeming inability to appreciate the impact of his conduct on his victims and his continued focus on his own victimization; and the fact that despite treatment at ADTC, R.X.L. remained unable to explain why he engaged in the conduct. Dr. Kern concluded that R.X.L.'s pattern of behavior was deeply ingrained, that his disorders cause him to have serious difficulty controlling his sexually violent behavior and that he poses a high risk of recidivating if not confined for additional treatment.

Judge Freedman reviewed the expert's testimony and evaluated the evidence under the standards enunciated by the Supreme Court in W.Z., supra. He found and concluded:

[R.X.L.] suffers from a mental abnormality on Axis one in the form of pedophilia as well as substance abuse problems, that his record clearly shows that this abnormality b[y] its very nature, his record shows that he is clearly predisposed to engage in acts of sexual violence. As a result of it, that he has had in the past and continues to have a serious inability to control that behavior because of a lack of adequate treatment . . . and that therefore he would be in fact highly likely if released to again engage in this conduct.

On appeal R.X.L. argues:

I. THE COURT ERRED IN RELYING ON THE

OPINIONS OF DRS. BARONE AND KERN

BECAUSE THESE OPINIONS WERE BASED IN

PART ON THE OPINIONS OF NON-TESTIFYING

EXPERTS. (Not Raised Below)

II. THE EVALUATIONS PREPARED BY NON-

TESTIFYING EXPERTS CONSTITUTE HEARSAY,

DO NOT COMPLY WITH N.J.R.E. 703, AND

SHOULD NOT HAVE BEEN ADMITTED AS

EXHIBITS AT TRIAL.

III. THE STATE FAILED TO PROVE BY CLEAR

AND CONVINCING EVIDENCE THAT R.X.L. WAS

SUBJECT TO SVP COMMITMENT.

We find R.X.L.'s arguments without sufficient merit to warrant extended discussion in a written decision, R. 2:11-3(e)(1)(E). Judge Freedman's findings are supported by clear and convincing evidence in the record. R. 2:11-3(e)(1)(A).

We add the following brief explanation for rejecting R.X.L.'s arguments based on the quality of the evidence. Neither of the experts who testified at this hearing simply relied upon and repeated diagnoses rendered by non-testifying experts. Both based their opinions on their independent assessment of R.X.L.'s significant and prolonged history of sexual conduct with prepubescent males, his prior admissions and recent reports of his participation in treatment. Dr. Kern's testimony was further informed by his two clinical evaluations of R.X.L. The testimony in this case is distinguishable from the testimony this court found deficient in In re Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004). Moreover, we are convinced that Judge Freedman considered and referenced the prior reports admitted into evidence only for the purpose of evaluating the basis for the opinions of the testifying experts and not for the truth of matters asserted in inadmissible hearsay included therein.

 
Affirmed.

In addition, if the STU "treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released, the treatment team [must] recommend" authorization for a petition for discharge. N.J.S.A. 30:4-27.36a.

(continued)

(continued)

9

A-2146-03T2

RECORD IMPOUNDED

January 30, 2006