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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4255-08T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

A.G. SVP-497-08.

____________________________________________________________

May 30, 2012

Submitted April 18, 2012 Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, SVP-497-08.

Joseph E. Krakora, Public Defender, attorney

for appellant (Thomas G. Hand, Designated

Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Amy Beth Cohn,

Deputy Attorney General, on the brief).

PER CURIAM

A.G. appeals from a corrected judgment entered on May 12, 2009, committing him to the Special Treatment Unit, a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and 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. Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat 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.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[Inre Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitmentof V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (internal quotation marks and citation omitted). A reviewing court must be mindful that the SVPA was enacted "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re CivilCommitment of E.D., 353 N.J.Super. 450, 456 (App. Div. 2002).

On September 8, 1997, when he was twenty-nine years old, A.G. pled guilty to third-degree endangering the welfare of a nine-year old girl in violation of N.J.S.A. 2C:24-4(a). Defendant was sentenced to a three-year prison term and community supervision for life.

Following his release from prison, A.G. was charged with sexually abusing a nine-year old girl. On April 23, 2001, A.G. pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second-degree sexual assault, N.J.S.A. 2C:14-2(b). A subsequent evaluation by the Adult Diagnostic and Treatment Center (ADTC) provided the following background information:

The victim reported multiple incidents of sexual abuse, that included [A.G.] touching her vagina in a sexual manner and also having to masturbate him while he watched pornographic movies. This progressed to incidents of attempted sexual intercourse/sexual intercourse. [A.G.] threatened the victim not to tell anyone, but she eventually told her stepmother and authorities were contacted. When he was arrested, [A.G.] initially denied any sexual contact with the victim, but he later admitted to multiple incidents of fondling behaviors and masturbating himself while the victim lay naked in bed.

[A.G.] was charged with Sexual Assault and related charges in Jersey City in 1990, and he pled guilty to Crimes Against a Person and received two years probation. He was charged with Endangering the Welfare of a Child and Sexual Assault in Palisades Park in 1996, and he pled guilty to Endangering the Welfare of a Child and received a three-year state prison sentence. He was also convicted of Arson in 1994 in Newark, and he received three years probation. Offense history is notable for the 1996 conviction for Endangering the Welfare of a Child, which involved an incident in which [A.G.] sexually molested one of the present victim's girlfriend's during a sleepover at the victim's home. He served most of his sentence at South Wood Correctional Facility, and he was released from prison about six weeks prior to his arrest for the present offense.

The ADTC evaluation also determined that A.G. was eligible for sex offender treatment. On October 30, 2001, A.G. was sentenced to twelve years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served at the ADTC.

A.G. participated in treatment at the ADTC. However, his "Termination Report" dated December 19, 2007, noted his lack of progress and lack of motivation:

During the time that [A.G.] has been involved in a Level III treatment group, he has maintained consistent attendance. Nevertheless, [A.G.] rarely initiates time to explore his own issues. His participation for others is minimal at best. When challenged to discuss his crime dynamics, [A.G.] has a tendency to be evasive. While [A.G.] admits to having committed the offenses against his paramour's daughter and her friend, he continues to externalize blame. More specifically, [A.G.'s] presentation of his crimes is laden with distortions that reflect his belief that his victim was to blame for his offending behaviors. For example, on a recent occasion, [A.G.] stated that he "let her masturbate me," when referring to the nine-year-old daughter of his paramour. When referring to the daughter's friend, [A.G.] stated "she was supposed to be asleep." In fact, [A.G.] demonstrates very little insight into his offending behaviors at all and often presents with an inappropriately humorous, indifferent, and arrogant attitude when discussing his crimes.

. . . .

[A.G.'s] risk for sexual reoffending does not appear to be mitigated by any progress in treatment. He demonstrates an overall lack of motivation and has a rudimentary understanding of his own high-risk situations and other relapse prevention concepts. Furthermore, given the intensity of [A.G.'s] arousal, his self-reported "obsession" with masturbation and feeling "out of control" of his sexual urges, it is recommended that he undergo a psychiatric evaluation to determine whether civil commitment under the Sexually Violent Predator Act should be pursued.

Prior to A.G.'s release from the ADTC, the State filed a petition to civilly commit him under the SVPA, and he was temporarily committed to the Special Treatment Unit pending a hearing. At the hearing on January 30, 2009, the State presented the testimony of Pogos Voskanian, M.D., a psychiatrist, and Shawn McCall, Psy.D., a psychologist. A.G. did not testify, and he did not present any witnesses on his behalf.

Dr. Voskanian evaluated A.G. on December 12, 2008. He testified that his written report dated December 15, 2008, accurately summarized his findings and conclusions and confirmed that the records he reviewed came from information sources that forensic experts normally rely on. Dr. Voskanian diagnosed A.G. with pedophilia, attracted to prepubescent females, non-exclusive type, and personality disorder NOS. He concluded that A.G.'s mental abnormality and personality disorder placed him "at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care and treatment."

Dr. McCall evaluated A.G. on January 5, 2009, and his testimony was similar to Dr. Voskanian's. In his written report, which was admitted into evidence, Dr. McCall summarized his findings and conclusions as follows:

[A.G.] was found to suffer from three psychological disorders, two of which clearly qualify as a mental abnormality as defined by New Jersey's SVPA. Specifically, this examiner came to the opinion, within a reasonable degree of psychological certainty, that [A.G.] suffers from Pedophilia and Narcissistic Personality Disorder, each of which, for [A.G.], is an acquired or congenital condition affecting his emotional, volitional, and behavioral capacity that predisposed him to commit sexually violent acts, as defined by New Jersey's SVP [s]tatute. These two conditions, by themselves, are a sufficient potential pathway to continued sexual offending because he likes prepubescent girls and is focused on himself and his needs primarily. [A.G.'s] personality structure allows him to do as he pleases to gratify his perceived needs despite the consequences. Although he appears to have sexual arousal to adult women, his behavior suggests that he also has deviant sexual arousal to young girls and will attempt to gratify that arousal in both impulsive and more deliberated fashions. Based on the reviewed sources of information, and within a reasonable degree of psychological certainty, in my opinion [A.G.] is highly likely to engage in future acts of deviant sexual behavior as defined by the SVP statute if released into the community at this time.

In an oral decision on February 9, 2009, the trial court found that both of the State's experts were credible. The court also found by clear and convincing evidence that A.G. had engaged in sexually violent behavior and, due to his mental abnormality and personality disorder, he was highly likely to engage in acts of sexual violence "within a relatively short period of time" if he was released. Consequently, the court entered a judgment committing A.G. to the Special Treatment Unit on February 10, 2009, and a corrected judgment was entered on May 12, 2009.

On appeal, A.G. presents the following arguments:

POINT I

THE SVPA PROCEEDING VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1 (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES) BECAUSE THE TRIAL COURT RELIED ON THE UNRELIABLE OPINIONS OF THE STATE'S EXPERTS WHICH WERE BASED ON UNPROVED ALLEGATIONS CONTAINED IN HEARSAY. (Partially Raised Below)

A. THE HOLDING IN MATTER OF C.A. IS NO LONGER APPLICABLE.

B. CRIMINAL DUE PROCESS PROTECTIONS MUST BE APPLIED TO SVP CASES.

C. FUNDAMENTAL FAIRNESS DEMANDS THAT N.J.R.E. 703 CANNOT ALLOW FOR THE WHOLESALE ADMISSION OF HEARSAY EVIDENCE FOR THE COURT TO REVIEW.

D. AT THE SVPA PROCEEDING, THE COURT MAY ONLY RELY ON THE DIAGNOSIS AND OPINIONS OF THE STATE'S EXPERTS THAT ARE COMPLETELY BASED ON EITHER (1) THE FACTS DEFENDANT HAS PLED TO OR (2) HEARSAY SUPPORTED BY SUBSTANTIVE PROOF.

E. THE SAME COURT CANNOT ACT AS BOTH GATEKEEPER AND FACT FINDER IN AN SVPA PROCEEDING.

F. THE SVPA VIOLATES FEDERAL AND STATE SUBSTANTIVE DUE PROCESS.

POINT II

A.G.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE THE STATE HAS PUNISHED HIM FOR PRIOR CONDUCT. (Not Raised Below)

POINT III

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.G. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. STANDARD OF REVIEW.

B. THE STATE FAILED TO PROVE MENTAL ABNORMALITY.

C. THE STATE FAILED TO PROVE THE LACK OF CONTROL REQUIREMENT OF W.Z.

POINT IV

A.G. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Based on our examination of the record and the applicable law, we reject these arguments and affirm A.G.'s involuntary commitment under the SVPA substantially for the reasons stated by Judge Philip M. Freedman in his comprehensive oral decision on February 9, 2009. See State v. Bellamy, 178 N.J. 127, 136 (2003) ("Commitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexual harmful conduct."). A.G.'s arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).