IN THE MATTER CIVIL COMMITMENT OF G.G.N.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2982-04T22982-04T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF G.G.N. (SVP 257-02)

___________________________________

 

Argued January 9, 2006 - Decided February 10, 2006

Before Judges Lintner, Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-257-02.

Jean M. Hartmann, Designated Counsel argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Hartmann, of counsel and on the brief).

Robert J. Gillispie, Jr., Deputy Attorney General argued the cause for respondent (Peter C. Harvey, Attorney General, attorney Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Gillispie and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

Appellant, G.G.N., appeals the Law Division's January 24, 2005 order committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -35, with a review hearing ordered in twelve months. We affirm.

On July 20, 1981, defendant, G.G.N., pleaded guilty to aggravated sexual assault, N.J.S.A. 2C:14-2 (Count One), possession of a weapon, N.J.S.A. 2C:39-4(a) (Count Two), first-degree aggravated sexual assault, N.J.S.A. 2C:14-2 (Count Three), second-degree possession of a weapon, N.J.S.A. 2C:39-4(a) (Count Four), first-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2 (Count Five), and possession of a weapon, N.J.S.A. 2C:39-4a (Count Six). G.G.N. was sentenced to twenty years incarceration for one sexual assault, ten years for each of the other sexual assaults, and five years for each weapons possession charge.

G.G.N. was evaluated at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey on September 14, 1981 by Dr. Basil Campeon. G.G.N. stated to Dr. Campeon that his sexual assaults of women were the result of "an urge he couldn't control" and indicated that he would like to receive treatment. Dr. Campeon opined that G.G.N.'s behavior was "part of a repetitive and compulsive pattern of erratic sexual behavior," and that he harbored "deep-seated conflicts stemming from and related to the psychosexual area," justifying his incarceration at the ADTC. G.G.N. spent six years in state prison and was transferred to the ADTC in 1987, where he received treatment for fourteen years, leading to his successful completion of "all the psychoeducational modules offered."

On June 26, 2002, the Attorney General filed a Petition for Civil Commitment of G.G.N. under the SVPA, and on July 5, 2002, the Law Division entered an order for temporary civil commitment of G.G.N. to await a final hearing. A final hearing took place on August 2, 2002 and September 11, 2002. On September 13, 2002, the judge committed G.G.N. to the STU with a review to take place six months later.

G.G.N. appealed that judgment, resulting in an August 20, 2004 reversal and remand by this court in In re Civil Commitment of G.G.N., 372 N.J. Super. 42 (App. Div. 2004). We seriously questioned the State's proofs in that only two witnesses were presented, neither of whom treated G.G.N. during his fourteen years in the ADTC. Id. at 58. Our opinion noted that those two doctors only engaged in a short interview with G.G.N. and "came close to testifying that in their view, commission of the original offenses, twenty-one years earlier, was sufficient for SVP commitment." Ibid. While recognizing that hearsay has a limited use in SVP cases, we found that it was "impossible to tell if [the trial court's] references are only for the purpose of evaluating the credibility of the expert testimony, or if the court was using the information more substantively." Id. at 59. We then concluded that "the State's witnesses gave excessive weight to the original crimes in finding present day likelihood to engage in acts of sexual violence." Ibid.

The rehearing on remand was conducted by the judge over a period of six days. On January 24, 2005, the court again entered a judgment committing G.G.N. to the STU with a review hearing scheduled twelve months later. This appeal followed:

In 1981 G.G.N. pleaded guilty to three rapes and to one attempted rape, all of which occurred within one month. The attacks involved G.G.N. approaching a female on the street, directing her to a secluded spot and raping her, sometimes forcing her to perform fellatio. One victim was able to escape before being raped. The victims ranged in age from fifteen to forty. Each victim reported that G.G.N. used a silver colored handgun to commit the attacks. G.G.N. has since admitted to a date rape in 1979 and to forced intercourse with two girls while he was in high school. At the time that G.G.N. pled guilty to the sexual assaults he was under probationary supervision for forgery and possession of stolen property.

At the rehearing, G.G.N. presented the testimony of Lawrence Turek, G.G.N.'s primary therapist at the ADTC for over eight years, Dr. Manuel Iser, a psychologist and one of G.G.N's STU therapists from 2003 to 2004, and Dr. Timothy C. Foley, a psychologist.

Turek testified that G.G.N.'s treatment participation at the ADTC was "excellent." During his time in therapy and treatment, G.G.N. was required to repeatedly discuss his offenses in order to insure that he did not deny any aspect of his crimes and his sexual fantasies, aberrant or otherwise. G.G.N.'s expression of remorse for his offenses was genuine and he was "strongly motivated to create no more victims." Having worked with thousands of sex offenders, Turek did not think G.G.N. was "faking" his motivation and participation in therapy.

At the ADTC, G.G.N. advanced to treatment level IV, which is for "people who have completed most of the work." While at the ADTC, G.G.N. was twice referred to the parole board by the Special Classification Review Board (SCRB). Such references required agreement by more than twelve psychologists that the inmate had done what was necessary to return safely to the community. The parole referrals indicated G.G.N. understood his offenses and why he committed them and had developed the skills necessary to return safely to the community. Turek opined that G.G.N.'s expressions of remorse for and understanding of his offenses must have been genuine, otherwise, he would not have been recommended for release. G.G.N. was denied parole in 1992 because the parole board was uncomfortable with G.G.N.'s living arrangement plan.

G.G.N. admitted to engaging in sexual relations with three inmates, although he was not charged with an infraction as a result of that activity. Turek felt G.G.N.'s institutional infractions were caused by his frustration with prison life and that they were not reflective of his past behavior.

Turek opined that G.G.N. was not at high risk to re-offend. However, he noted that G.G.N. was a person with certain personality traits that were unlikely to change. In so stating, Turek was unable to predict whether G.G.N. would have more or less trouble following rules upon his release. Turek testified that the importance of following the rules of the program are stressed to all inmates at the ADTC, that G.G.N. did commit some institutional or rule infractions while at that facility, and that committing these types of rule infractions are never considered a minor event and become the focus of a resident's treatment for some time, if and when they occur. Turek agreed that infractions occurring close to a possible release date are particularly relevant.

Dr. Iser testified that G.G.N. has had good attendance, has been very verbal in his therapy groups at STU, and has provided regular, consistent and supportive feedback to his peers. Dr. Iser stated that G.G.N. showed "insight into the dynamics behind his offenses," seemed to have a "pretty good understanding" of the factors that may have led him to offend with women, was consistent about his offenses over time and "seemed to display a very knowledgeable understanding of his offense cycles." Dr. Iser's testimony, although generally favorable to G.G.N., acknowledged that while at the STU, G.G.N. was getting involved in "things that hindered his treatment." He stated that G.G.N.'s rule violations showed defiance on his part.

Dr. Foley testified that he met with G.G.N. on November 17, 2004 for about two and one-half hours. His risk assessment looked at G.G.N.'s actuarial test results, including a Hare score of twenty and Static-99 score of plus seven. Dr. Foley admitted that a Hare score of twenty is high and "its indicative of traits that have caused the person problems." The Static-99 score of plus seven indicates an individual is in the group of most highly likely to recidivate sex offenders. Dr. Foley opined, however, that this risk is mitigated by G.G.N.'s age (forty-six) and his sixteen to seventeen years of treatment progress. Dr. Foley noted that G.G.N. was between sixteen and twenty-one when he committed his sexual crimes.

Dr. Foley agreed that "there certainly is a history of adult antisocial behavior and some of that adult antisocial behavior continued while confined up to the present." He also agreed that G.G.N. met most, if not all, of the seven D.S.M.-IV characteristics for antisocial personality disorder and that his behavior at the ADTC and the STU showed that these characteristics were still present. Finally, although he declined to diagnose G.G.N. with paraphilia, Dr. Foley characterized G.G.N.'s index offense behavior as involving a "paraphilic focus."

The judge, notwithstanding the testimony of Turek, Dr. Iser and Dr. Foley, relied on the testimony of the four experts presented by the State in arriving at her findings. The State's experts were Dr. Lawrence A. Siegel, a psychiatrist, Dr. Luis Zieguer, a psychiatrist at the STU, Dr. Robert Carlson, a STU psychologist, and Dr. Thomas Schattner, a psychologist on the Treatment Progress Review Committee (TPRC) at the STU.

Dr. Siegel testified that the actuarial instruments put G.G.N. in a high risk category to re-offend. Additionally, based on his interviews with G.G.N. on December 20, 2001 and January 3, 2002, Dr. Siegel saw no reason to lower that risk. He based this opinion not only on his finding that G.G.N. fell into a high risk group on the actuarial instruments but also on G.G.N.'s indications of antisocial personality disorder and because in his view, G.G.N.'s progress in treatment was not satisfactory. Thus, in Dr. Siegel's view, the risk G.G.N. presented was similar to that represented in the actuarial scores, despite the fact that G.G.N. had been viewed as having done well in treatment in the past.

Dr. Siegel noted ongoing institutional infractions committed by G.G.N. and made clear that when combined with the fact that G.G.N. was in a high risk category to begin with that his antisocial personality disorder traits, transpsychopathic trends, and the rule infractions became significant in demonstrating that G.G.N.'s treatment has not been effective in modulating his behavior at the institution.

Dr. Siegel further testified that his diagnosis of paraphilia NOS was based on his view that G.G.N.'s arousal pattern was consistent over a period of years. The diagnosis of antisocial personality disorder, based upon G.G.N.'s clear history of rule violations as an adult, Dr. Siegel viewed as relevant to the likelihood of sexually re-offending as it would allow G.G.N. to act on his deviant sexual arousal. In Dr. Siegel's opinion, the combination of G.G.N.'s psychopathic tendencies, his high scores on the MnSOST-R and Static-99, his ongoing rule violations, and the suggestion of underlying sadistic urges is "an especially worrisome mixture" and he concluded that G.G.N. is at a high risk to re-offend.

Dr. Zieguer interviewed and performed a psychiatric assessment of G.G.N. on November 23, 2004, and issued a report on January 3, 2005 based upon his findings. Dr. Zieguer testified that he diagnosed G.G.N. with paraphilia NOS and personality disorder NOS with antisocial borderline features. Dr. Zieguer concluded that G.G.N.'s "very high risk has not yet been significantly mitigated by treatment." Dr. Zeiguer's diagnosis of paraphilia was based on G.G.N.'s history of deriving pleasure from engaging in non-consensual sex with people who were suffering.

Dr. Zieguer opined that G.G.N.'s institutional infractions were clinically relevant to his risk to re-offend and a sign of a serious personality disorder, the characteristics of which cause him to have difficulty controlling his sexually offending behavior. Dr. Zieguer also found G.G.N.'s scores on the actuarial instruments to place him in the highest tier of the risk to re-offend and opined that G.G.N.'s risk to re-offend was "unarguably high."

The State also presented the report and testimony of Dr. Carlson. Dr. Carlson's December 28, 2004 evaluation of G.G.N. took into account G.G.N.'s institutional reports and records, actuarial tests, psychometric instruments and his interview of G.G.N. on December 27, 2004. Dr. Carlson diagnosed G.G.N. with paraphilia NOS non consenting, ruling out alcohol or marijuana abuse. He also diagnosed G.G.N. with antisocial personality disorder with psychopathic traits. Dr. Carlson concluded that G.G.N. posed a significant risk of sexual re-offense if released. He based his diagnosis of paraphilia on G.G.N.'s behavioral history. The diagnosis of antisocial personality disorder with psychopathic traits was based on his behavioral history, his institutional history and his psychometric data. Dr. Carlson found G.G.N.'s institutional history significant to show his antisocial traits and that he posed a significant risk to re-offend.

Dr. Schattner issued a report on June 29, 2004, setting forth the recommendations and conclusion of the TPRC evaluation of G.G.N. that took place on June 16, 2004. The TPRC recommended G.G.N. for Phase Three of treatment, which was consistent with the recommendation from G.G.N.'s treatment team. The TPRC agreed with the diagnosis of paraphilia NOS based on the fact that G.G.N. was turned on by rape. The TPRC also agreed that the diagnosis of personality disorder NOS with psychopathic features was appropriate based on G.G.N.'s behavior.

The hearing judge entered her findings on January 11, 2005. She found that based on the history of G.G.N.'s convictions alone, the State had established by clear and convincing evidence that these offenses met the criteria for sexually violent acts. Judge Perretti noted that from all of the testimony, including the testimony of G.G.N.'s witnesses, there was no question that G.G.N. exhibited aberrant sexual behavior over a number of years.

The judge also found that the evidence established in a clear and convincing manner that G.G.N. 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. The judge noted that this predisposition was in large part driven by G.G.N.'s antisocial personality disorder, which allowed him to act on his paraphilic arousals and urges. The judge noted that from all of the testimony it was clear that G.G.N. has antisocial personality disorder and that the disorder is "so strong" that he is unable to control his offending behavior in custody. The judge also found that when G.G.N.'s antisocial personality disorder is combined with his strong paraphilia, "this is a very dangerous man."

As to G.G.N.'s risk of re-offense, the judge found that the undisputed, very real risk of re-offense that existed at one time for G.G.N. had not been sufficiently mitigated by the treatment he received at the ADTC and the STU and that he remained highly likely to recidivate at this time. In making her findings, the judge made credibility findings in favor of the State's psychiatric expert witnesses.

In determining that G.G.N.'s antisocial personality disorder continues, the judge placed great emphasis on the experts' opinions concerning G.G.N.'s continual pattern of institutional rule breaking.

In referring to Dr. Zieguer's testimony, the judge stated:

The rule breaking in the institution, which Dr. Zieguer does not break down according to type from bad to worse but merely deals with as infractions, are the things which convince him that the antisocial personality continues. It is this rule breaking that according to him is the key to the continuation of the conditions. The psychiatrist explains that the sex offenses that were committed by the respondent are not modular. They cannot be surgically excised from the remaining entire make-up of the person. The psychiatrist evaluates the respondent's rule breaking as establishing that he continues to be unable to abide by rules even in a structured environment, and this to him indicates the absence of any therapeutic mitigation or change. He continues to do what he does, what he wants to do and say what he wants to say. The psychiatrist disagrees with the idea that repeated infractions in custody are unconnected to sex offending or risk of recidivism. He takes them as marks of the respondent's personality which he explains is in his opinion what permits the respondent to act out in a sexually offending manner.

The judge recognized the therapeutic progress that G.G.N. accomplished in the fourteen years he was incarcerated at the ADTC and during his stay at the STU, as testified to by Turek and Dr. Iser and as contained in the December 11, 2001 ADTC termination report. The judge noted, however, the considerable list of institutional infractions mentioned by the experts who testified, as well as the testimony of Turek who opined that G.G.N. would always have problems complying with the rules, which behavior he described as "antisocial." The judge pointed out that G.G.N. had twenty institutional infractions and that Turek, though minimizing their importance, conceded that there is no insignificant infraction in therapy and that there is a problem if G.G.N. continues to repeat them, i.e. that repetition of rule breaking is an indication of a failure to make progress. The judge also referenced Dr. Iser's concerns about G.G.N.'s infractions at the STU. The judge noted, "Dr. Iser said that if the respondent is acting contrary to the rules in a restricted environment [his] willingness to break rules may carry over when he is out of a restrictive environment." The judge continued:

Dr. Iser had some meetings with the respondent about some infractions that -- which were impeding his, the respondent's progress. And the respondent expressed that his institutional infractions were stemming from his helplessness at confinement. One is always faced with helplessness in this world, but one does not always respond by committing infractions or breaking the rules.

Dr. Zieguer and Dr. Siegel and Dr. Carlson attribute this rule breaking directly to the respondent's personality disorder, his antisocial characteristics. Even Dr. Foley concedes adult antisocial behavior.

. . . .

I do not take any position about the importance of any of these infractions. I am convinced by the testimony of the experts who testified here that these infractions, be they large or small, are markers of the respondent's personality disorder, and it is this personality disorder which is so inflammatory in combination with the paraphilia.

. . . .

All of these things are, as Dr. Zieguer testified, relevant to his diagnosis of personality disorder . . . . The personality disorder can be correlated with sexual recidivism insomuch as they are indications of antisocial self-defeating behavior which is relevant to the respondent's sex offending behavior. It's what fuels his sex offending behavior. And the doctor testified that continued rule breaking is a hallmark of antisocial personality disorder. Thus, consistent rule breaking is significant and relevant and no one disagrees with that.

. . . .

I am convinced that everyone who testified here, Dr. Zieguer, Dr. Carlson, Dr. Siegel carefully reviewed the respondent's history at the ADTC taking into consideration the good with the bad. There is no doubt that the respondent can and does verbally demonstrate an understanding of sex offending treatment theory. However, it's clear to me from this evidence that the respondent does not demonstrate that he has changed as a result of it. He is unable to control his offending behavior in custody. As explained by Dr. Zieguer, he acts within the limitations of his environment. He does not have the opportunities that he would have on the outside . . . . The respondent has not been willing to sacrifice his hard core antisocial belief system. He strives to persuade the therapists that his rule breaking can be separated from his sex offending because they are dissimilar. The psychiatrists says otherwise and I have no reason to depart from their opinion . . . . Indeed, it's the personality disorder that permits the sexual misbehavior and it's the continued rule breaking in custody over a long period of time even in the face of consequences which demonstrate that the hardcore personality disorder continues to this day and would if given the opportunity permit the respondent to act out upon his paraphilias.

G.G.N. presents the following issues for our consideration.

POINT I

THE HEARING COURT ERRED WHEN IT DENIED RESPONDENT'S MOTION TO DISMISS, AS THE STATE FAILED TO PROFFER EVIDENCE OF A DIFFERENT NATURE AND CALIBER THAN THAT PRESENTED IN THE FIRST HEARING, AS REQUIRED BY THIS COURT'S PRIOR DECISION.

POINT II

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR (U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, Par. 1) (Not Raised Below).

A. THE STATE FAILED TO PROFFER THE TESTIMONY OF A TREATING PSYCHIATRIST.

B. THE STATE'S PROOFS WERE INCREDIBLE AS A MATTER OF LAW.

C. THE STATE FAILED TO PROVIDE CLEAR AND CONVINCING EVIDENCE OF A PRESENT SERIOUS DIFFICULTY IN CONTROLLING SEXUALLY VIOLENT BEHAVIOR.

POINT III

THE HEARING COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES IN REACHING ITS DECISION (Partially Raised Below).

POINT IV

THE HEARING COURT DENIED APPELLANT FUNDAMENTAL FAIRNESS WHEN IT FAILED TO CONSIDER CONDITIONAL DISCHARGE.

I

G.G.N. contends that the State failed to present "opinion evidence more firmly rooted in relevant data," as required by our remand. We determined that at G.G.N.'s prior hearing the State's proofs were inadequate in that only two witnesses were presented, neither of whom treated G.G.N. during his fourteen years in the ADTC. G.G.N., supra, 372 N.J. Super. at 58.

N.J.S.A. 30:4-27.30b requires that a psychiatrist on a person's treatment team, who has examined the person within five days prior to the hearing, testify at the civil commitment hearing. On remand the State presented Dr. Zieguer, a psychiatrist with the STU. We are satisfied that Dr. Zieguer satisfies the statutory requirement of presenting a psychiatrist. N.J.S.A. 30:4-27.30b. Dr. Carlson, a psychologist at the STU, was also presented to further satisfy our requirement on remand that more testimony from the STU treatment personnel be proffered. The majority of the treatment teams are made up of psychologists and social workers. By selecting a psychiatrist and a psychologist from the STU, the State substantially complied with the requirements set forth by this court and the statute. See N.J.S.A. 30:4-27.26b. Additionally, Dr. Zieguer's testimony concerning the significance of G.G.N.'s rule breaking infractions as the key to G.G.N.'s continued antisocial personality disorder and their clinical relevance to G.G.N.'s risk of re-offending, which were relied upon by the judge in her findings, satisfies our concern that the evidence be more firmly rooted in relevant data.

II

G.G.N. contends that the State did not adequately prove that he was subject to commitment as an SVP. 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 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).

Our scope of review is extremely narrow when examining a trial court's commitment decision. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)(citing State v. Fields, 77 N.J. 282, 311 (1978)). Such a determination is afforded the highest deference and will be disturbed only where the trial court has clearly abused its discretion. Ibid.

We are satisfied that the proofs presented by the State conformed with the remand and that the trial court's determination that the requirements of N.J.S.A. 30:4-27.26 were proved by clear and convincing evidence was based on substantial credible evidence. The trial court here was presented with ample testimony regarding the actuarial test scores, G.G.N.'s diagnosis of paraphilia and antisocial personality disorder and of past and present institutional infractions. The court also considered the testimony regarding G.G.N.'s progress in ADTC treatment and STU treatment. The trial court did not abuse its discretion in according weight to the various forms of evidence presented. We are satisfied that the court's findings concerning the relationship between G.G.N.'s institutional infractions and G.G.N.'s sexual acting out were based on substantial evidence in the record. The judge's findings accepted Dr. Zieguer's opinion that the continuing infractions constitute the clinical evidence that G.G.N.'s paraphilia and antisocial personality disorder continue to the present day and that his continued infractions in a structured environment are connected to sex offending and the risk of recidivism.

III

G.G.N. contends that the trial court improperly admitted treatment records of the STU and the ADTC into evidence and improperly relied on them in reaching its decision. "[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion . . . .'" State v. Brown, 170 N.J. 138, 147 (2000)(quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

Hearsay is not admissible unless it meets an exception. N.J.R.E. 802. However, in our remand decision, we restated our prior approval "of hearsay as the basis for expert testimony and the hearing judge's evaluation of expert credibility," and that some hearsay is admissible for the truth of the matter asserted as a business record admissible under N.J.R.E. 803(c)(6). G.G.N., supra, 372 N.J. Super. at 55-56 (citing In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004)), We cautioned, however, that the evidence being proffered as a business record should be carefully scrutinized for inadmissible hearsay. Id. at 56.

Reports "of a type reasonably relied upon by mental experts in formulating their evaluations of an individual's mental condition[]" may be introduced pursuant to N.J.R.E. 703, to explain the basis for an expert's opinion. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). A trial court is entitled to consider the records in the course of weighing the credibility of a testifying expert. See State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003).

G.G.N. objects to the admission of one treatment record containing an allegation that G.G.N. forced intercourse with a fellow resident of diminished capacity. However, the court rejected this allegation saying "I am not considering here at all the charge that the respondent got into a sexual mess with a Mr. [S]. It seems clear that this never happened and this was a false allegation by Mr. [S]. Everyone seems convinced as to that."

G.G.N. points to two other notations from his treatment records that he contends constituted inadmissible hearsay. First, the court noted that one of G.G.N.'s therapists recommended him for screening for civil commitment. Second, G.G.N. objects to the court's consideration of a psychiatrist's reaction to records containing allegations that G.G.N. had illegal substances imported into the prison. We are satisfied that these two entries are encompassed within the business record exceptions and that the judge did not abuse her discretion in admitting this evidence. The judge used the information about the drug allegations in assessing the credibility of the psychiatrist's testimony. The experts' opinions were based not only on the treatment records but also on their interviews with G.G.N. Further, the STU and ADTC treatment records were admissible as business records. Since these documents were properly admitted into evidence, the trial court did not err in denying an evidentiary hearing with respect to these records.

The judge in her decision made these predicate statements as to how the documentary sources were used by the experts in formulating their opinions expressed at the remand hearing. The judge stated:

The various experts who testified here including psychiatrists Lawrence Siegel and Luis Zieguer and psychologists Robert Carlson and Timothy Foley all referred to certain documentary sources, and by and large they all referred to the same sources. The reason for relying on and resorting to and reviewing and considering these sources was explained by Dr. Zieguer as being the standard in this profession of evaluators. The documents are read to get the background of the crimes and the early family background of the respondent. It's looked at to find any self-reports, any statements made by the respondent. It gives a picture of how others may have evaluated the respondent in the past so that the doctor can see any inconsistencies or consistencies over time. However, he emphasized -- this is Dr. Zieguer -- that he does not rely upon these documents but merely gains information from them which he considers using that information for his own opinion. This is a normal practice, he testified, for psychiatrists. He doesn't rely on their conclusions or interpretations but rather, makes his own diagnosis, his own conclusion and his own interpretations.

In our prior decision, we were convinced that "the State's witnesses gave excessive weight to the original crimes in finding present day likelihood to engage in acts of sexual violence[]" and that the experts seemingly dismissed fourteen years of positive treatment without adequate explanation as to how nine non-sexual infractions of a minor nature impacted on G.G.N.'s risk of recidivism. G.G.N., supra, 372 N.J. Super. at 59.

We are satisfied that the expert witnesses on remand explained the required linkage between G.G.N.'s institutional infractions and the risk of recidivism. That evidence supported the judge's finding that G.G.N.'s continuing instances of acting out, that continued to occur after our remand, constituted the clinical evidence that G.G.N.'s paraphilia and antisocial personality disorder continue to the present day and that G.G.N.'s continued infractions are connected to his sex offending and the risk of recidivism. Had those infractions not continued, the required linkage may well not have been present.

IV

G.G.N. contends that the trial court erred in rejecting G.G.N.'s attempt to submit proof that conditional discharge was appropriate. "[I]f [a] person is a sexually violent predator, conditional discharge is not an option." In re J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). Conditional discharge should only be considered if a person is no longer likely to be a sexually violent predator. See In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002). Where a sexually violent predator is statutorily required to be committed, a trial court has "no authority to place the offenders in a less restrictive facility." Id. at 458.

We are convinced that the trial court's finding that G.G.N. clearly and convincingly continues to pose a risk of committing sexually violent acts was based on substantial credible evidence. Thus, the trial court was not authorized to consider a conditional discharge for G.G.N.

 
Affirmed.

(continued)

(continued)

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A-2982-04T2

RECORD IMPOUNDED

February 10, 2006