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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF H.G., SVP-659-12.

__________________________________

September 9, 2014

Submitted June 2, 2014 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-659-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Timothy P. Malone, Deputy Attorney General, on the brief).

PER CURIAM

Respondent H.G. appeals from an order civilly committing him as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Respondent argues that the State presented insufficient evidence, and that the court erred in admitting the testimony of the State's psychiatric expert. We affirm.

I.

Respondent was born in 1960. His criminal career began as a juvenile. In 1977, respondent and others abducted a teenage girl on her way home from school, stripped her, and sexually assaulted her. He was adjudicated delinquent for attempted rape, assault and battery, and placed on probation. He violated his probation by unauthorized use of a motor vehicle, and was committed to the Yardville Youth Correctional Facility. In 1978, four months after his parole, the now-adult respondent committed armed robbery, robbery, and auto larceny and was again sentenced to Yardville.

On September 28, 1981, barely a year after being paroled, respondent robbed a sixteen-year-old girl, M.C. He later related that "it just clicked in my mind that I was going to make her give me a blow job." Wielding a knife, respondent and his armed co-respondent compelled M.C. to disrobe, attempted to rape her, and handled her in an extremely rough manner. Respondent forced her to fellate him. Respondent was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); first-degree armed robbery, N.J.S.A. 2C:15-1; and an unrelated burglary and theft, and sentenced to a total of twenty years in prison with ten years of parole ineligibility.

On July 26, 1994, eight and one-half months after his release, respondent saw a woman, J.O., in a self-storage facility and "[i]t just clicked in my mind get her." He entered and held a knife to her throat. He threatened her with bodily harm and robbed her of jewelry and the cash receipts. He ordered her into the bathroom and forced her to fellate him, with the knife still at her throat. He recklessly cut both the front and sides of J.O.'s neck. Telling her he would kill her if she emerged from the bathroom or activated the alarm, he cut the phone line and fled.

On August 16, 1994, investigators went to respondent's house. He fought the officers, and threatened them with a large ashtray and a knife, saying they would have to kill him or he would kill them. Respondent later pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); first-degree armed robbery, N.J.S.A. 2C:15-1; two aggravated assaults, N.J.S.A. 2C:12-1(b)(3) and (b)(5)(A); terroristic threats, N.J.S.A. 2C:12-3(b); criminal restraint, N.J.S.A. 2C:13-2; resisting arrest, N.J.S.A. 2C:29-2; and unlawful possession of a weapon, N.J.S.A. 2C:39-4(d).

While detained on those charges, he joined in a group of inmates that robbed an inmate, pulled down his pants, and put baby oil on his buttocks. Respondent was charged with aggravated criminal sexual conduct, but pled guilty to conspiracy, N.J.S.A. 2C:15-1(a)(1).

Prior to sentencing on all the 1994 charges, the Adult Diagnostic Treatment Center (ADTC) evaluated respondent and found him to be repetitive and compulsive, and thus within the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. The sentencing court found that respondent "is a severe danger to society and should be incarcerated as long as possible." The court sentenced him to a total of thirty-two years in prison with sixteen years of parole ineligibility, with the second half of that sentence to be served at the ADTC "so that he may receive maximum rehabilitation before he is paroled."

Respondent generally demonstrated good impulse control while confined at the ADTC, but had disciplinary infractions in 2005 and 2010. He received treatment, demonstrated considerable effort, and made some progress, completing several psychoeducational and substance abuse programs. However, psychologist Dr. Jonathan Riley evaluated respondent in 2011 and 2012, and found that respondent's clinical focus and relapse plan addressed his criminality and substance abuse far more than his sexual offending dynamics. Although he had gained some understanding, "his insight remains rudimentary."

As his release neared in 2012, psychiatrists Dr. Marina Moshkovich and Dr. Tarita Collins completed clinical certificates identifying respondent as a sexually violent predator. The State petitioned for civil commitment under the SVPA. At the hearing, Judge Freedman heard testimony from the State's experts, psychiatrist Dr. Pogos Voskanian and psychologist Dr. Jamie Canataro, and from respondent's expert, psychologist Dr. Timothy Foley. On December 24, 2012, Judge Freedman issued an oral opinion and an order committing respondent to the Special Treatment Unit for sexually violent predators. Respondent appeals.

II.

We must hew to our standard of review. "We must defer to the findings of the trial judge when . . . the findings are based on sufficient evidence in the record, considering the record in its entirety, 'with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 468 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007). A judge's "findings warrant particular deference when they are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy" on a cold record. State v. Rockford, 213 N.J. 424, 440 (2013) (citations and quotation marks omitted). "An appellate court should not overturn a trial court's findings because it 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." In re Civil Commitment of R.F., 217 N.J. 152, 175 (2014).

Furthermore, "'[t]he scope of appellate review of a commitment determination is extremely narrow.'" Id. at 174. "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. "A trial judge is 'not required to accept all or any part of [an] expert opinion,'" as "[t]he ultimate decision is 'a legal one, not a medical one.'" Ibid. "We must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff d, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). "Accordingly, an appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" R.F., supra, 217 N.J. at 175. "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid.

III.

Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). There are three prerequisites for a person to be classified as a sexually violent predator. In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014).

First, the person must have been convicted or adjudicated delinquent of a "sexually violent offense," which includes aggravated sexual assault. N.J.S.A. 30:4-27.26. Here, it is undisputed that respondent's conviction for aggravated sexual assault on J.O. is a "sexually violent offense," thus satisfying the first prerequisite for commitment.

Second, the person must "suffer from a mental abnormality or personality disorder." R.F., supra, 217 N.J. at 173. The SVPA defines "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. The SVPA does not define "personality disorder." Whatever the nomenclature, "the mental condition must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002).

Third, the State must meet the showing required by our Supreme Court in upholding the constitutionality of the SVPA. The State must prove that, as a result of his mental abnormality or personality disorder, "the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 133-34. This showing encompasses and enhances the SVPA's requirement that the mental abnormality or personality disorder must "make 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. "'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.

IV.

The State presented sufficient evidence that respondent "suffers from a mental abnormality or personality disorder" within the meaning of N.J.S.A. 30:4-27.26. Dr. Voskanian testified that respondent suffers from Paraphilia not otherwise specified (NOS) and Anti-Social Personality Disorder (ASPD), both of which are personality disorders under the American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR). ASPD is "a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood and early adolescence and continues into adulthood." Id. at 701. Paraphilia is "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months." Id. at 566.1

Moreover, Dr. Voskanian opined these mental conditions affect respondent emotionally, cognitively, and volitionally to predispose him to sexual violence, thus meeting the definition of mental abnormality. Dr. Canatoro similarly found that respondent suffers from Paraphilia NOS (non-consent) and ASPD, and that as a result, he is predisposed to sexual violence.2 Even respondent's expert, Dr. Foley, agreed he has ASPD.

This evidence supported Judge Freedman's findings that respondent "clearly" has ASPD, that he "certainly engaged in paraphilia-like behavior," and that his mental conditions affected his emotional, cognitive or volitional capacity and "clearly predisposed" him to engage in acts of sexual violence.

V.

The State also presented sufficient evidence that, as the result of his mental abnormality or personality disorder, respondent "has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 133-34.

Dr. Voskanian testified as follows. The combination of ASPD and Paraphilia NOS increased respondent's risk of sexually reoffending. These conditions do not spontaneously remit, and respondent had not made sufficient progress during treatment to mitigate his "quite high risk." Respondent's commission of offenses while in prison, shortly after being released from prison, and while on probation corroborated that he would have serious difficulty controlling his sexual offending behavior, and that he posed a high risk to sexually reoffend.

Dr. Voskanian also diagnosed respondent with polysubstance dependence, which was in remission in a controlled environment. Dr. Voskanian noted respondent's significant history of abusing substances such as heroin, cocaine, amphetamines, and alcohol, which began in elementary school and reached daily and heavy usage. Dr. Voskanian noted respondent's admissions that he took drugs to build courage to commit crimes, and he committed his robberies to fund his drug purchases.e committed his Dr. Voskanian opined that future drug or alcohol use would magnify the risk.

Respondent notes his progress in treatment at the ADTC. Dr. Voskanian acknowledged that progress, but pointed out that the ADTC's Dr. Riley still found respondent's insight to be rudimentary. In the subsequent interview with Dr. Voskanian, respondent still minimized the degree of violence in his prior offenses, further showing that he has "very poor insight" into his sexually offending behavior, and "a lot of unaddressed issues." Even after eight years in the ADTC, respondent still did not know why he repetitively committed violent sexual offenses, he had not addressed why he committed the 1977 and 1981 sexual offenses in front of other men, and did not feel as though he had a mental illness. Respondent could not consistently relate his alleged history of being sexually abused himself, raising "a lot of questions regarding real childhood experiences which [have] not been addressed."

Respondent contends Dr. Voskanian gave contradictory testimony when he opined that respondent's lower testosterone levels in his fifties would have limited impact because his offenses were driven by anger rather than libido. However, this is not inconsistent with Dr. Voskanian's concern that respondent did not address or understand why his anger led him to commit his offenses in sexual ways. Similarly, there was no inconsistency in Dr. Voskanian's discussion of whether risk assessment required him to predict the future. See W.Z., supra, 173 N.J. at 132-33.

In any event, the court could admit and credit Dr. Voskanian's testimony regardless of the claimed inconsistencies. See New Jersey Div. of Youth And Family Services v. A.R., 405 N.J. Super. 418, 438 (App. Div. 2009). Moreover, Dr. Canatoro similarly testified that respondent's ASPD and Paraphilia NOS predisposed him to sexually reoffend, that he suffered from polysubstance dependence in remission in a controlled environment, that he has serious difficulty controlling his sexual offending behavior, and that he was highly likely to reoffend. She cited essentially the same concerns raised by Dr. Voskanian, which she found to be robust predictors of sexual recidivism. She agreed that despite respondent's progress at ADTC, he had not addressed "the sexual component of his acting out." She also found his risk levels so high that "his age is not significant enough to lower his risk that much."

Like the State's experts, and Dr. Foley, Judge Freedman found that respondent suffered from polysubstance dependence. The court acknowledged that respondent had aged and had done well in addressing his drug use and criminal activity, but that the sexual component remained largely unaddressed. The court rejected the view of respondent's expert, Dr. Foley, that respondent's criminal and sexual offenses were so intertwined that addressing the first addressed the second. Thus, the court credited the State's experts that respondent had not "done sufficient treatment to reduce his risk below the high likelihood" of sexually reoffending. The court found that "if released now he would have substantial difficulty in controlling his sexually violent behavior." The court added that respondent was "highly likely to revert to substance abuse and that would just increase his risk by reducing his inhibitions even further." The court concluded that respondent was "highly likely to engage in acts of sexual violence" within the reasonably foreseeable future, and that there was a need for civil commitment. The evidence supported that conclusion.3

VI.

Respondent contends on appeal that Dr. Voskanian bolstered his testimony by citing non-testifying experts, and thus that the trial court erred in admitting his testimony. However, "an expert who substantially relies on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information was of a 'type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" W.X.C., supra, 407 N.J. Super. at 640-41 (quoting N.J.R.E. 703).

Dr. Voskanian's report and testimony noted the reports by Dr. Riley and the clinical certificates by Drs. Moshkovich and Collins.4 However, Dr. Voskanian testified that they were "the normal type of documents persons in [his] profession normally do review when doing these types of reports," because "they give description of the resident's functioning over the extended period of time. They describe his insight. They provide some understanding of his treatment progress, of his offending history, [and] of his report of his offenses." Dr. Canatoro testified similarly.

The trial court found by clear and convincing evidence that the reports and certificates were the types used by experts in conducting these types of evaluations. Judge Freedman based this conclusion not only on Dr. Voskanian's testimony, but also on the testimony of the other experts in this case, the case law, the literature in the field, and the judge's experience adjudicating such cases since 2000.

Moreover, Dr. Voskanian made clear he relied on the data in prior reports and his own interview of respondent to arrive at his diagnosis, "regardless of reading prior diagnoses." He did not "simply parrot the findings of the doctors who author the clinical certificates[.]" See id. at 639-40; A.E.F., supra, 377 N.J. Super. at 485, 488-89; cf. E.S.T., supra, 371 N.J. Super. at 568-69, 571, 575 (finding testifying experts relied on the opinions contained in clinical certificates). The court similarly stated that it was relying on the testifying experts' opinions, not hearsay. See W.X.C., supra, 407 N.J. Super. at 641.

It was not "bolstering" for Dr. Voskanian to answer questions whether there was any significant difference between his evaluation and the evaluations by Drs. Moshkowitz and Collins. See In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 96-97 (App. Div. 2007). Similarly, Dr. Voskanian could note the fact that, while respondent told Dr. Voskanian that he did not masturbate at the ADTC, he told Dr. Collins at the ADTC that he still masturbated while fantasizing about forced sex. Defendant has failed to show an abuse of discretion, let alone plain error. W.X.C., supra, 407 N.J. Super. at 640; R. 2:10-2.

Affirmed.

1 Dr. Voskanian also could not rule out sexual sadism or exhibitionism. A "rule out" diagnosis "is typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained." Alvin E. House, DSM-IV Diagnosis in the Schools 33 (2002).

2 Dr. Canatoro's Paraphilia diagnosis was provisional because respondent denied to her what he affirmed to Dr. Collins, namely that he masturbated to rape fantasies. A "provisional" diagnosis is used to indicate "a significant degree of diagnostic uncertainty." DSM-IV-TR, supra, at 5.

3 The court added that respondent's treatment gave him "a good basis to start on," and that he might be a candidate for a conditional discharge in the future. The court scheduled a review hearing.

4 Respondent does not claim that the detailed clinical certificates were not "the type of material that should be relied on pursuant to N.J.R.E. 703," as has been suggested in dicta. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491 (App. Div.), certif. denied, 185 N.J. 393 (2005); see In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 572 (App. Div. 2004) (describing United States v. Tran Trong Cuong, 18 F.3d 1132, 1143-44 (4th Cir. 1994)); cf. United States v. Marine Shale Processors, 81 F.3d 1361, 1370 (5th Cir. 1996) (rejecting Tran and holding: "That a research protocol or method was conducted in anticipation of litigation does not mean that it cannot be the type of study an expert would rely upon in expressing his opinion.").