STATE OF NEW JERSEY v. N.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6214-04T26214-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

N.W.,

Defendant-Appellant.

 

Argued: March 27, 2006 - Decided August 3, 2006

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Appeal Number 1-05.

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Van Pelt, on the brief).

Leo J. Hurley, Jr., Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Mr. Hurley, on the brief).

PER CURIAM

The issue presented by this appeal is whether a sexually violent predator involuntarily committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, based on a judicial adjudication that he is suffering from a mental abnormality that causes him difficulty in controlling sexually violent behavior to the extent that it is highly likely that, without commitment, he will commit another sexually violent offense can be criminally prosecuted for the offense of lewdness, N.J.S.A. 2C:14-4a, against a psychiatric social worker employed by the Department of Corrections, for acts while he is a resident of the STU.

Defendant argues, inter alia, that N.W. cannot be found criminally responsible for evidencing the very conduct for which the State elected to involuntarily commit him for treatment at a secure commitment facility. We disagree. Unless a defendant can establish that his "mental abnormality" or other "mental disease or defect," N.J.S.A. 2C:4-2, negates an element of the charged offense, criminal responsibility cannot be avoided solely on the basis that the offense charged manifests the type of conduct for which the defendant has been involuntarily committed for treatment assuming, of course, the State otherwise establishes each element of that offense beyond a reasonable doubt.

We also reject defendant's contention that the State failed to prove beyond a reasonable doubt the element of the offense of lewdness that defendant "knows or reasonably expects" that his flagrantly lewd and offensive act "is likely to be observed by other nonconsenting persons who would be affronted or alarmed."

Accordingly, we affirm defendant's conviction for the disorderly-persons offense of lewdness, N.J.S.A. 2C:14-4a. The following factual and procedural history informs our conclusions.

On or about October 30, 2002, the State filed a petition under the SVPA seeking the involuntary commitment of N.W. on the basis that he was a sexually violent predator in need of commitment because he was suffering from a mental abnormality that placed him at a high risk for committing another sexually violent act. Upon the filing of the petition, a temporary order of involuntary commitment was entered pursuant to N.J.S.A. 30:4-27.28, N.W. was placed in the STU, and "the issue of continuing need for involuntary commitment as a sexually violent predator[,]" N.J.S.A. 30:4-27.29a, was addressed at hearings conducted in the Law Division on November 19, 2002, and December 19, 2002.

On February 14, 2003, defendant N.W. was charged with committing an act of disorderly-persons lewdness, contrary to N.J.S.A. 2C:14-4a, on December 6, 2002, while he was involuntarily confined as a sexually violent predator at the STU in Kearny. The complaint states that N.W. did

perform a flagrantly lewd offensive act by exposing his genitalia and masturbating for the purpose of arousing or gratifying the sexual desire of the defendant, knowing or reasonably expecting that the act was likely to be observed by a non-consenting person who would be affronted or alarmed, exhibiting the described act as he sat across a conference table from the victim, Ms. J. Caccese, a social services employee who was conducting an interview with [defendant].

N.J.S.A. 2C:14-4a provides:

A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

Jena Caccese is a psychiatric social worker at the STU, and, on December 6, 2002, was performing a social work assessment of N.W. at the STU in connection with N.W.'s commitment pursuant to the SVPA. Following his commitment at the STU, Ms. Caccese was the social worker assigned to N.W.'s case.

In her testimony at N.W.'s trial on the lewdness charge, conducted in Kearny Municipal Court on October 22, 2004, Ms. Caccese stated that on December 6, 2002, she was performing a psychosocial assessment of N.W. in a small room adjacent to the main central area in the treatment trailer. She explained that in this assessment, "the resident is asked for information about his family background, religious background, experiences growing up, employment history, sort of to get a rounded picture of who the resident is, what his needs are."

Although the psychosocial assessment is generally completed within the first thirty days of a resident's commitment, this was the first time that Ms. Caccese had met with N.W., and she had not reviewed his case file. She testified that the treatment trailer "is an open . . . trailer where recreation was going on, residents were milling around." Ms. Caccese stated that she had just completed an assessment of another resident, and was standing near the officer's station in the trailer, about to call for another resident, when N.W. approached her and made some inquiries. Ms. Caccese determined that she was N.W.'s social worker, and agreed to conduct N.W.'s psychosocial assessment.

N.W. and Ms. Caccese then entered the small assessment room in the trailer, which contained a table and two chairs. Ms. Caccese sat on one side of the table, with her back to the door, and N.W. sat across the table from her with his back to the window. The assessment took approximately one hour. The incident that formed the basis for the filing of the criminal complaint against N.W. occurred at the conclusion of the assessment, and was described by Ms. Caccese during her direct examination, in pertinent part:

Q. Okay. And after the assessment was completed, what occurred?

A. At the conclusion of the assessment, I informed [N.W.], I said, you know, I've asked you all the questions that I need to ask you right now; are there any questions that you have for me. And he said that he did. And he started talking about the SVP commitment process.

* * * *

Q. Okay. And what, if anything, occurred as you were finishing up?

A. Like I said, I was looking down and writing. And [N.W.] -- I believe he asked me something about . . . like, is the STU a violent place or does -- yeah, is this a violent place? And . . . he looked scared. And I looked at him and I said, well, there's been a couple of resident-on-resident assaults, but it's really not that common.

And so I go back down to writing. And he's sort of asking me about commitment and I'm saying to him, you know, the best thing you can do is just, you know, not get involved in any sex or drugs on the unit, keep your nose clean, everything you do or don't do goes to the court, so just try to behave yourself.

Q. Is he seated at this point?

A. Yeah.

Q. Okay.

A. And so as I'm writing, I happen -- as we're in this part of the conversation, I look up and he has his erect penis in his hand. He's stroking it very slowly. And he's looking at me with a sort of a . . . smile.

* * * *

Q. What . . . did you do?

A. I believe that I stood up from the table at that point, pushing my chair back from behind me. And I asked -- I sort of confirmed -- I said to him, "you have your shit out, right here?" And he started to laugh. And he goes, "it's my thumb, it's my thumb." And he puts his thumb up.

Q. Was it his thumb?

A. No. The thumb was smaller, darker skinned, and had a long fingernail. His penis was lighter skinned, longer, and he was stroking it.

I instructed him to stand up from the table. He did not. He hunched over, had his hands in his lap, and was sort of fumbling as if, you know, trying to fasten his pants.

I again instructed him to stand up. He finally stood up. I left the room and I told the officer outside to get him out of here.

On questioning by the municipal court judge, Ms. Caccese testified she was angry and shocked by N.W.'s actions.

At the conclusion of the State's case, citing to State v. Cummins, 168 N.J. Super. 429 (Law Div. 1979), defense counsel moved to dismiss the charge on the basis that criminal charges should not be filed against a person committed based on the very type of conduct that necessitated his commitment. The judge reserved decision. On December 10, 2004, the judge delivered an oral decision. In denying the motion to dismiss, the judge distinguished Cummins, finding that defendant cannot be given immunity from criminal laws just because he was committed. After finding defendant guilty, the judge imposed a ninety-day suspended jail term.

On appeal, after conducting a de novo hearing on June 9, 2005, on the record below, the Law Division judge affirmed N.W.'s conviction, finding that there was no immunity for defendant concerning the commission of criminal acts while committed. The trial court also found that the elements contained in N.J.S.A. 2C:14-4a had been established by the State beyond a reasonable doubt, in that N.W. had committed a flagrantly lewd and offensive act, and "that [N.W.] knew or reasonably knew that doing this lewd act he was likely to be observed by the social worker who was involved . . . [a]nd I also find that she clearly was affronted or alarmed."

On appeal, defendant presents the following arguments for our consideration:

POINT ONE

THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT [N.W.] REASONABLY EXPECTED THAT HIS SOCIAL WORKER AT THE SPECIAL TREATMENT UNIT WOULD BE AFFRONTED OR ALARMED BY HIS SEXUAL BEHAVIOR IN THAT FACILITY.

POINT TWO

THE COURT ERRED IN FINDING DEFENDANT GUILTY OF LEWDNESS BASED SOLELY ON HIS INABILITY TO CONTROL HIS SEXUAL BEHAVIOR WHICH RESULTED IN HIS CIVIL COMMITMENT.

Both of these arguments are interrelated, in that they are founded on N.W.'s status as a person involuntarily committed at the STU as a sexually violent predator. In Cummins, supra, 168 N.J. Super. at 432, the defendant was convicted of violating N.J.S.A. 2A:170-28, which read:

Any person who by noisy or disorderly conduct disturbs or interferes with the quiet good of any place of assembly, public or private, including schools, churches, libraries and reading rooms is a disorderly person.

On the date of the alleged offense, the defendant was involuntarily committed to Marlboro Psychiatric Hospital, a state mental institution. Ibid. It was the defendant's eighteenth admission to Marlboro, and he had been involuntarily committed there for approximately six days prior to the date of the alleged offense. Ibid. In his opinion, Judge Shebell, then assigned to the Law Division, outlined defendant's history and the nature of the alleged offense, as follows:

Defendant had been in several other mental hospitals, both in this State and other jurisdictions. The Marlboro State Hospital records reveal that defendant has consistently been diagnosed as suffering from manic depressive illness, manic type, and when he discontinues his medication because he no longer believes he needs it, he becomes excited, boisterous and threatening. The hospital records further reveal that his illness caused him to make racial accusations, be over-talkative and belligerent, and that he was unpredictable, with insight and judgment lacking. The complaint stated that defendant "did with intent to create a disturbance at the Marlboro Psychiatric Hospital." The complaint was signed by an "institution attendant" at the Marlboro Psychiatric Hospital. The complainant was assigned at the time of the incident to assist defendant, who was on the "maximum security" ward and believed to be suffering a heart attack. He took defendant from "maximum security" to a cottage where he was to wait for a doctor. It was in the ward area of the cottage at the state hospital that defendant was proved to have created a disturbance by being unruly and calling the attendant "nasty names."

[Id. at 431-32.]

The defendant was convicted in municipal court and, on appeal to the Law Division, contended, inter alia, "that N.J.S.A. 2A:170-28 was improperly applied to him because of his status as an involuntarily committed patient at the state hospital." Id. at 432. In considering the matter, Judge Shebell first noted that the purpose of N.J.S.A. 2A:170-28 was "to permit the State to protect places of 'assembly, public or private,' from 'noisy or disorderly conduct.'" Ibid. (citing State v. Mogulis, 110 N.J. Super. 454 (App. Div. 1970); State v. Besson, 110 N.J. Super. 528 (Cty. Ct. 1970)). The judge emphasized that "what constitutes a disturbance will depend on the character of the assembly." Ibid. (citing State v. Smith, 46 N.J. 510, cert. denied, 385 U.S. 838, 87 S. Ct. 85, 18 L. Ed. 2d 71 (1966)).

Judge Shebell found that although "it can be argued that mental patients in a state hospital ward can be greatly troubled by disturbances created in their cottage ward when another patient acts up, it does not appear that the Legislature ever intended the statute in question to be applied to such a situation." Ibid. In reversing the conviction, the judge stated:

The State has decided that defendant required compulsory treatment for his illness and he was accordingly involuntarily committed to the Marlboro Psychiatric Hospital. To convict the involuntary committee of a quasi-criminal offense for displaying the symptoms of his illness while in a place intended to treat that illness, and upon the complaint of one whose duty it is to have the care and custody of such a patient, imposes punishment where none can either constitutionally or morally be justified. The application of the statute to this defendant under the facts presented not only constitutes a misapplication of the statute but constitutes an unconstitutional infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

[Id. at 432-33 (citation omitted).]

Here, we conclude that the reasoning in Cummins is inapplicable to these circumstances. We first note there is a rather stark difference between the legislative purposes of N.J.S.A. 2C:14-4a and N.J.S.A. 2A:170-28. N.J.S.A. 2C:14-4 was intended to protect persons from "that conduct which constituted a form of sexual aggression[,]" Tri-State Metro Naturalists v. Township of Lower, 219 N.J. Super. 103, 115-16 (Law Div. 1987); see State v. Zeidell, 154 N.J. 417, 430 (1998) (noting that lewdness "is a disorderly persons offense whenever the actor engages in any flagrantly lewd and offensive act, including exposing the actor's own genitals regardless of whether done for the actor's arousal or gratification, which the actor knows or reasonably expects is likely to be observed by other non-consenting persons over the age of thirteen years who would be affronted or alarmed by the conduct"), whereas the legislative purpose of N.J.S.A. 2A:170-28 was to protect places of assembly from noisy or disorderly conduct, Cummins, supra, 168 N.J. Super. at 432.

Thus, although it seems clear that, by its enactment of N.J.S.A. 2A:170-28, the Legislature could not have intended to protect places of assembly within an institutional setting from noisy or disorderly conduct by an involuntarily-committed resident that interfered with the quiet or good order, we find nothing in the language of N.J.S.A. 2C:14-4a, or its legislative history, that would reflect anything other than a legislative intent that all persons be protected from "any flagrantly lewd and offensive act" committed by any person who "knows or reasonably expects [that it is] likely to be observed by other nonconsenting persons who would be affronted or alarmed."

The offense of disorderly persons lewdness also requires that the defendant act with the culpability requirement of "knowingly," defined as follows:

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.

[N.J.S.A. 2C:2-2a(2).]

Here, the record fully supports the conclusion that M.W. acted "knowingly" with respect to his conduct with respect to the elements of a N.J.S.A. 2C:14-4a lewdness offense.

Most assuredly, if an involuntarily-committed resident could establish most probably through expert testimony that he or she was suffering from a mental abnormality or illness that made him or her unable to manifest the required "knowingly" degree of culpability at the time of commission of the alleged offense, that could negate an essential element of the offense, and, if so, criminal responsibility could not be established. See State v. Glover, 230 N.J. Super. 333, 338-39 (App. Div. 1988) (Judge Shebell then assigned to the Appellate Division citing to N.J.S.A. 2C:4-2, and noting that a defense of diminished capacity requires evidence that the defendant suffered from a mental disease which prevented him from having the state of mind that is an element of the offense), certif. denied, 121 N.J. 621 (1990).

Moreover, given the purposes of the SVPA to protect persons from sexually violent predators, it seems clear that the Legislature could not have intended to immunize persons involuntarily committed as sexually violent predators from sexual offenses committed by them during their stay at the STU. See N.J.S.A. 30:4-27.25. Indeed, if it had intended to immunize involuntarily-committed residents from criminal responsibility for certain conduct, it could have so stated; it has not.

We can envision circumstances where the treatment of a sexually violent predator itself might induce the commission of a flagrantly lewd and offensive act, such as during a therapy session when the resident is encouraged to speak freely concerning his or her compulsions, and to delve into the facts and causative circumstances of the predicate sexually violent act or acts. In such circumstances, should such an act be induced by the treatment, the defense of consent pursuant to N.J.S.A. 2C:2-10 might be applicable, or the requisite element contained in N.J.S.A. 2C:14-4a that the resident knows or reasonably expects that nonconsenting persons who would be affronted or alarmed would be likely to observe the flagrantly lewd and offensive act might be absent. However, the circumstances of this case do not support either the existence of a defense, or the absence of proof beyond a reasonable doubt of each element of the offense.

Affirmed.

 

The STU is a secure facility in Kearny, operated by the Department of Corrections, designated for the treatment of persons determined to be sexually violent predators.

The SVPA defines a "mental abnormality" as "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26.

Lewdness, N.J.S.A. 2C:14-4, does not fall within the definition of a "sexually violent offense" set forth in N.J.S.A. 30:4-27.26.

Copies of the petition, order of temporary commitment, and any order issued as a result of the hearings conducted pursuant to N.J.S.A. 30:4-27.29 are not contained in the record on appeal. We have determined this history from the briefs and the small portion of the December 19, 2002 transcript that is contained in the record.

N.J.S.A. 2A:170-28 was repealed by L. 1978, c. 95, eff. September 1, 1979.

(continued)

(continued)

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A-6214-04T2

RECORD IMPOUNDED

August 3, 2006