IN THE MATTER OF THE CIVIL COMMITMENT OF M.D.

RECORD IMPOUNDED

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2992-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.D.,

SVP-600-11.

________________________________________________________________

August 5, 2014

Submitted July 15, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-600-11.

Joseph E. Krakora, Public Defender, attorney for appellant M.D. (Michele C. Buckley, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H.Raksa, AssistantAttorney General, of counsel; Kay R. Ehrenkrantz, Deputy Attorney General, on the brief).

PER CURIAM

M.D. (Mark)1 appeals from the February 10, 2011 order committing him involuntarily to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, Mark argues "the State failed to prove by clear and convincing evidence that [he] was subject to commitment as a sexually violent predator," and "the trial court erroneously relied upon hearsay documents and the testimony of a non-treating psychiatrist in finding [him] a sexually violent predator." We have considered Mark's contentions in light of the record and applicable law and affirm.

At the time of the subject hearing, Mark was a sixty-two-year-old male with an extensive history of committing sexual offenses against minors and non-sexual offenses, dating back to April 1978. The first incident occurred in 1978 when Mark, then twenty-six years old, was arrested and charged with carnal abuse and impairing the morals of a fourteen-year-old girl. He was convicted of carnal abuse and sentenced to eighteen months' imprisonment.

In February 1988, while living in New York, Mark raped at knifepoint the thirteen-year-old daughter of a woman with whom he had been living. He pled guilty to second-degree sexual abuse and was sentenced to one year of incarceration. After serving his time, Mark re-offended in April 1991 in New York when he used a crowbar to enter a residence at 3:30 a.m. and raped a ten-year-old girl. Police apprehended Mark in February 1993 and charged him with two counts of first-degree rape, two counts of first-degree burglary, two counts of first-degree sexual abuse, third-degree criminal possession of a weapon, and possession of burglary tools. Mark was convicted of rape in 1995 and sentenced to ten to twenty years imprisonment.

In 1993, Mark was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one), and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count two), arising from the sexual assault of an eight-year-old girl in 1992. Mark had left his wife's home after an argument and spent the night at a neighbor's home. After the neighbor and her boyfriend went to sleep, Mark entered her daughter's bedroom, wrapped the child in a blanket, put his hand over her mouth, and took her to his car. Mark drove the child to a "dark place," removed her clothing, and vaginally penetrated her. Mark then returned the child to her home, placed her in her bed, and told her not to tell her mother what had happened.

The next morning, the child informed her mother that she was bleeding from her vagina and told her what happened between her and Mark. When examined at Jersey City Medical Center, a senior gynecologist determined that the girl would need emergency surgery given the level of physical trauma experienced as a result of the sexual assault. Mark was sentenced to concurrent terms of thirty years with a fifteen-year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one; twenty years with a ten-year period of parole ineligibility on count two, to be served at the Adult Diagnostic and Treatment Center (ADTC); and to community supervision for life.

In January 2011, shortly before the expiration of his sentence, the State petitioned for Mark's involuntary civil commitment pursuant to the SVPA.2 In support of its petition, the State included the clinical certificates of two psychiatrists, Eleanor Berger-Vo, M.D., and Roxanne Lewin, M.D., both of whom evaluated Mark in January 2011 and identified him as a sexually violent predator eligible for civil commitment. A temporary order of commitment was entered on January 7, 2011. A commitment hearing on the matter was scheduled for January 31, 2011, before Judge Philip M. Freedman.

Before the hearing, Dean DeCrisce, M.D., attempted to interview Mark, but Mark refused to engage before speaking with his attorney and without a Spanish translator present. On the rescheduled date, the facility denied the interpreter entry because he had forgotten his identification. Because Dr. DeCrisce could not conduct the interview, he prepared his final report, dated January 25, 2011, by reviewing the discovery file and Mark's treatment records, including a 2010 treatment summary, a 1994 psychological evaluation, the 2011 clinical certificates, and individual ADTC treatment notes spanning a period from 2001 to 2010.

At trial, the judge overruled Mark's pre-trial objection to the admission of reports upon which Dr. DeCrisce relied to form his opinion, arguing that they constituted inadmissible hearsay. Dr. DeCrisce was qualified as an expert in psychiatry and testified on behalf of the State. The State entered numerous documents into evidence, including the ADTC treatment records. Mark presented no witnesses.

Dr. DeCrisce explained that the sources of information upon which he relied are the types of documents people in his profession regularly use to prepare expert reports. He explained further that he used the documents "to establish a timeline of offending, the personal history of the individual as stated in various reports and pre-sentence investigations . . . [,and] to establish the treatment history." Dr. DeCrisce indicated that he did not adopt the diagnoses formed in such records, but rather formulated his own.

Next, Dr. DeCrisce recounted Mark's history of sexual offenses. As to Mark's offenses while incarcerated, he had three significant institutional infractions: two for fighting and one for assault, two of which led to 180 days administrative segregation and one which led to 120 days administrative segregation. In June 2010, Mark received another fighting charge for which he received a sanction of ten days detention and the loss of his job.

As to Mark's treatment while incarcerated between 2001 and 2003, he actively participated in group therapy sessions. Mark later advanced into the Therapeutic Community at ADTC, but he requested to be removed after one year because he had difficulty accepting feedback from peers and staff. He was seen to be a "resistant individual that had poor insight into his dynamics and poor command of relapse preventing techniques."

According to Dr. DeCrisce, Mark did not have empathy for his victims, but rather sought to have a "father/daughter relationship" with his victims upon release. In February 2006, Mark reported for the first time that "he struggled with masturbatory fantasies, and that he had arousal to teenage girls." In March 2007, Mark denied having any deviant arousal to young girls, explaining that he only offended against his step-daughter because of erectile dysfunction. Nevertheless, later that year he enrolled in an Arousal Reconditioning Module to learn techniques to decrease his arousal. Mark admitted during the program, after twelve years of treatment, that he had been masturbating on a regular basis to deviant fantasies.

As reflected in a July 2008 ADTC treatment note, Mark, then fifty-five years old, admitted that he previously had fantasies about luring a child by making threats. Mark further admitted that at least one year earlier he had been aroused by the cries, fear, and blood of his neighbor's eight-year-old daughter.

Based upon his review of Mark's treatment records at ADTC, Dr. DeCrisce opined that treatment was minimally successful. Dr. DeCrisce concluded that despite his treatment, Mark remained in the upper-end of repeated problematic sex offenders, and that he suffered from a mental abnormality, which predisposed him to sexually re-offend.

Dr. DeCrisce further diagnosed Mark with pedophilia based upon his sex offenses against four young children, his admissions that "he was fantasizing about his younger girl victims," at least two of whom were prepubescent, and his fifteen-year history of having such fantasies. Additional diagnoses included: Alcohol Dependence, Cocaine Abuse, Depressive Disorder, not otherwise specified (NOS), Rule-out Post-Traumatic Stress Disorder, Rule-Out Sexual Sadism based upon his fantasies involving his victims' cries and blood and his history of torturing animals, and Personality Disorder with Anti-Social Traits based upon his multiple arrests, difficulty with supervision, and impulsivity.

As to his ultimate opinion, Dr. DeCrisce stated that given Mark's diagnosed disorders, there was a high risk that he would sexually re-offend if released into the community. Dr. DeCrisce identified several factors contributing to Mark's high risk of recidivism, including his repeated crimes from 1978 to 1992 that signified the strength of his deviant drive and anti-social characteristics, "a stranger victim, offenses after prior sanction, criminality, alcoholism, the presence of deviant fantasies, poor community functioning, poor relationship history, poor prior supervision compliance, and poor treatment effect."

Judge Freedman placed an oral decision on the record in which he reviewed the evidence in detail, made credibility findings on the expert testimony, and concluded the State had proven by clear and convincing evidence that Mark suffered from mental abnormalities in the form of pedophilia and substance abuse that predisposed him to acts of sexual violence. The judge also concluded that if released from confinement, Mark would be highly likely to re-offend within the reasonably foreseeable future. Therefore, Judge Freedman ordered Mark's civil commitment and continuing sex offender treatment, and he scheduled a review hearing for January 2012. We have not been informed of the results of the review hearing.

On appeal, Mark raises the following issues:

I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [MARK] WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

II. THE TRIAL COURT ERRONEOUSLY RELIED UPON HEARSAY DOCUMENTS AND THE TESTIMONY OF A NON-TREATING PSYCHIATRIST IN FINDING [MARK] A SEXUALLY VIOLENT PREDATOR.

This court's review of a judgment of commitment pursuant to the SVPA is limited. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). An appellate court "can only reverse a commitment for an abuse of discretion or lack of evidence to support it." Ibid. (citing In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005)). Moreover, "the committing judges under the SVPA are specialists in the area, and [this court] must give their expertise in the subject special deference." Id. at 226. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

For these sound reasons, an appellate court should not modify the SVPA trial judge's "determination either to commit or release an individual unless 'the record reveals a clear mistake.'" In re Civil Commitment of R.F., 217 N.J. 152, 175 (2014) (quoting In re D.C., 146 N.J. 31, 58 (1996)). "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. (internal quotation marks omitted).

The applicable law is well-settled. Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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. As defined by the statute, a mental abnormality is "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." Ibid. A mental abnormality or personality disorder "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). The statute does not require a "complete loss of control." Id. at 128. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; see also R.F., supra, 217 N.J. at 173-74.

At the SVPA commitment hearing, the State must prove:

a threat to the health and safety of others because of the likelihood of [an SVPA offender] 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.

[W.Z., supra, 173 N.J. at 132.]

Applying these principles here, we affirm the order directing Mark's continued commitment, substantially for the reasons set forth by Judge Freedman in his oral decision of February 10, 2011. There is substantial credible evidence in the record, including the expert testimony of Dr. DeCrisce, to support Judge Freedman's conclusion that the statutory criteria for Mark's continued commitment were met. See R.F., supra, 217 N.J. at 175.

The State's expert, who was not rebutted by any other experts, confirmed that Mark continues to suffer from mental abnormalities, including pedophilia, substance abuse, and anti-social personality disorder, which pose a high risk of future sexual violence if Mark were released. Although Mark contends Dr. DeCrisce's opinion is based upon his review of psychological reports and other inadmissible hearsay, we are in accord with Judge Freedman that the expert permissibly relied upon these reports to form the basis of his opinions. See N.J.R.E. 703.

Moreover, the record is replete with evidence of Mark's persistent difficulty in overcoming his inability to control his harmful behavior, and his ongoing and regular masturbation to deviant fantasies about his victims despite receiving medication to counteract such urges. While the court acknowledged a singular treatment note dated 2010, in which Mark reported that he was "doing better" and realized he was wrong for blaming others for his actions, nothing in the record indicates that Mark, at the time of the hearing, would have been able to control his impulses if released into the community.

We are satisfied that Judge Freedman made no clear mistakes in continuing the commitment of Mark. See R.F., supra, 217 N.J. at 175. We are convinced that the State demonstrated clearly and convincingly that Mark requires continued involuntary commitment as a sexually violent predator. See N.J.S.A. 30:4-27.32(a).

Affirmed.

1 We use a pseudonym to protect the privacy of appellant and his victims.

2 Under the SVPA, "[t]he Attorney General may initiate a court proceeding for involuntary commitment." N.J.S.A. 30:4-27.28(c). "If 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).

"Sexually violent predator" means a person 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.]