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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4387-10T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.P.

SVP-577-10.

___________________________________________

November 19, 2014

Submitted September 10, 2014 - Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-577-10.

Joseph E. Krakora, Public Defender, attorney for appellant M.P. (John P. Monaghan, Designated Counsel, on the brief).

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

PER CURIAM

Appellant M.P. appeals from an April 7, 2011 judgment finding him a sexually violent predator and ordering that he be civilly committed 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. M.P. challenges the sufficiency of the evidence to support his commitment. We affirm.

I.

The record discloses the following facts and procedural history leading to the determination under review.

M.P. was born in May 1985 and is currently twenty-nine years old. On August 15, 2007, he pleaded guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); second-degree attempting to lure a minor into a motor vehicle, N.J.S.A. 2C:13-6; and fourth-degree endangering the welfare of a child by possessing or viewing a photograph of a child engaged in a prohibited sexual act, N.J.S.A. 2C:24-4(b)(5)(b).

The charges and guilty pleas arose from two separate incidents involving M.P. and pubescent males. The first occurred on June 25, 2005 at a fire house. C.R., a twelve-year-old boy, reported that while he was at the fire house with his parents attending a graduation party, M.P., then twenty years old, offered to give C.R. a tour. While showing C.R. the fire engines, M.P. put his arms over C.R.'s shoulders, pressed against him and rubbed C.R.'s chest. As C.R. climbed up onto one of the trucks, M.P. placed his hands on C.R.'s buttocks in a support position. Later, at the station's shuffle board, when C.R. was leaning over the table, M.P. positioned himself behind C.R. and pressed the lower-half of his body against C.R. At this time C.R. felt uncomfortable and said he wanted to get a drink, and left M.P. in the fire house. Shortly thereafter, C.R. informed his parents about what had transpired with M.P.

When questioned by police that same day, M.P. admitted all of the accusations, and that he was sexually aroused by C.R. M.P. said he was disappointed he did not go further with the boy and expressed the desire to engage in oral and anal sex with him. M.P. was arrested and charged with sexual assault and endangering the welfare of a child in violation of N.J.S.A. 2C:14-2(b) and N.J.S.A. 2C:24-4(a). M.P. was released on bail and voluntarily began outpatient sex offender treatment.

While out on bail M.P., then twenty-one years old, initiated contact with M.M., a fourteen-year-old boy, through Facebook. M.P. sent sexually explicit messages to M.M. through his MSN Messenger screen name and suggested they spend time together alone. The boy alerted his parents who, after determining their son was communicating with M.P., the son of a known family associate, in turn informed the police. With the permission of M.M.'s parents, a detective from the Morris County Prosecutor's Office Sex Crimes/Child Endangerment Unit accessed M.M.'s Facebook account and communicated with M.P. while posing as the fourteen-year-old boy. Twice M.P. masturbated on web-cam video believing M.M. could see him. M.P. discussed performing sexual acts with the boy and encouraged M.M. to simultaneously masturbate with him and digitally penetrate himself. M.P. invited the boy to his residence on February 14, 2007 when M.P. would be alone, and suggested the two engage in sexual contact and oral sex at that time. Following this interaction, the police obtained a search warrant for M.P.'s residence, his parents' home, as well as his computer.

After executing the warrant, M.P was arrested and charged with: attempted enticement, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-6; attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(4); attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b); attempted engagement in sexual contact with a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a); attempted distribution of obscene materials to a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:34-3(b)(1); and attempt to show obscene materials to a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:34-3(b)(2).

On August 15, 2007, M.P. pleaded guilty to a number of offenses relating to C.R. and M.M. As to C.R., M.P. pleaded guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). As to M.M., M.P. pleaded guilty to second-degree attempting to lure a minor into a motor vehicle, N.J.S.A. 2C:13-6, and fourth-degree endangering the welfare of a child by possessing or viewing a photograph of a child engaged in a prohibited sexual act, N.J.S.A. 2C:24-4(b)(5)(b). On May 15, 2008, M.P. was sentenced to three years at the Adult Diagnostic Treatment Center (ADTC) for the charge relating to C.R., to run concurrent with the four-year sentence for the charges related to M.M. M.P. was also sentenced to Megan's Law requirements and parole supervision for life.

On July 29, 2010, prior to his scheduled release from the ADTC, the State moved for the civil commitment of M.P. pursuant to the SVPA. On August 6, 2010, M.P. was temporarily transferred to the STU. The final commitment hearing was held on February 23 and 24, 2011. At the hearing, a psychiatrist, Alberto M. Goldwasser, MD, and a psychologist, Rosemarie Vala Stewart, PhD, testified on behalf of the State. A psychologist, Barry Zakireh, PhD, testified on behalf of M.P., as did M.P.'s father. In reaching their conclusions all three experts incorporated: (1) M.P.'s arrest and presentence reports; (2) reports by two psychologists, Phillip Witt and Robert Raymond, hired by M.P.'s family following his arrest for the first incident with C.R.; (3) the ADTC evaluation authored by psychologist Catherine A. Blandford, Psy.D., who examined M.P. on December 14, 2007; (4) the February 3, 2010 ADTC Treatment Summary written by therapists Mary E. Nowacki, LCSW, BCD, and Richard Stiga, PhD, and (5) the Clinical Certificates of psychologists Marina Moshkovich, MD, and Anasuya Salem, MD, from July 2010.

The documents were all entered into evidence subject to M.P.'s objection to the use of any embedded hearsay therein. On appeal, M.P. focuses his challenge on the use of embedded hearsay in the reports created from December 2007 onward.

Dr. Blandford's ADTC evaluation is notable because it states M.P. admitted to engaging in sexual behavior with four other juvenile males unrelated to the incidents with C.R. and M.M.

According to [M.P.], these four additional juveniles were T.J. age 16 when [M.P.] was [18] in April 2004; [J.], age 15 when [M.P.] was 1[5] in June 2000; C.H. age 13 when [M.P.] was [19] in June 2004, and [C.] 16 when [M.P.] was [17] in May 2003. [M.P.] explained that all these were male juveniles with whom he was acquainted and had rubbed their chests and backs. He also acknowledged that while touching them he had an erection and was sexually aroused to them, and later masturbated to thoughts of having anal intercourse with the young juveniles.

However, there is nothing in the record to further substantiate the incidents. M.P. later denied any sexual behavior with anyone other than C.R. and M.M. Blandford's evaluation also noted M.P. "acknowledged that he had an addiction to the Internet and pornography," including child pornography, which he viewed and masturbated to at least once a day. The ADTC evaluation concluded M.P.'s "behavior was motivated by a compulsive force that he was ultimately unable to control," but also found him "amenable and [to have] the necessary cognitive and psychological assets to benefit from sex offender psychotherapy." Ultimately, Dr. Blandford recommended sex offender specific psychotherapy.

The February 2010 ADTC Treatment Summary reported that while at the ADTC, M.P. demonstrated difficulty addressing his sex offending dynamics and deviant arousal, and was unable to verbalize some of the basic concepts of relapse prevention. Further, M.P. engaged in inappropriate sexual behavior with other ADTC inmates and was described as immature and childish with little understanding of the potential consequences when confronted with his behavior. The summary noted M.P. continued to place himself in high-risk situations with high-risk individuals. Based upon her interviews with him, Nowacki rated M.P. an eleven and a seven on the MnSOST-R and Static-99 scales,1 respectively, and, consequently, Nowacki and Richard Stiga, another ADTC therapist, concluded he was a "high" risk for reoffense.

Lastly, the July 2010 Clinical Certificates of Dr. Moshkovich and Dr. Salem included additional MnSOST-R and Static-99 ratings based upon independent examinations of M.P., each reporting results identical to Nowacki's scores of eleven on the MnSOST-R and seven on the Static-99. Moshkovich diagnosed M.P. with: (1) Axis I pedophilia, NOS (adolescent boys, non-exclusive); (2) Axis II ADHD and (3) Axis III hyperlipidemia. Salem found M.P. suffered from: (1) Axis I ADD, predominately hyperactive; (2) Axis I pedophilia, NOS (attracted to teenage males), with internet pornography addiction; (3) Axis II borderline intellectual functioning (low average) and (4) Axis III hyperlipidemia and myopia. Both Dr. Moshkovich and Dr. Salem concluded M.P. qualified as a sexually violent predator under the SVPA because he had been convicted of a sexually violent offense, suffers from a mental abnormality as defined by the statute or personality disorder that makes him likely to engage in acts of sexual violence if not confined to a secure facility, and is highly likely to reoffend. At the commitment hearing, all three expert witnesses testified the reports were the type of materials usually relied upon by experts in the field.

In his testimony, Dr. Goldwasser diagnosed M.P. with pedophilia based upon M.P.'s prior attempts to sexually assault C.R. and M.M., as well as his admission to having intense sexual urges and fantasies involving children and masturbating to child pornography daily prior to his incarceration. Furthermore, Goldwasser found M.P. suffers from personality disorder, NOS because he was not entirely forthcoming regarding his behaviors and was unable to recognize that these behaviors were an unnatural mental problem. Dr. Goldwasser did not find M.P.'s statement that he no longer feels attraction to young boys, but rather adult males to be altogether convincing or informative. Goldwasser concluded these statements and M.P.'s sexual behaviors with other ADTC inmates were more a reflection of M.P.'s lack of contact with boys and therefore not representative of a significant change in his sexual preferences. Relying on his personal examination of M.P., as well as a review of M.P.'s file and treatment records, Goldwasser concluded M.P. has serious difficulty in controlling his sexually offending behavior and is a high risk to sexually reoffend. To support this conclusion, Goldwasser pointed to M.P.'s second offense, which occurred while he was out on bail and awaiting adjudication of charges relating to C.R. When asked about the fact he was out on bail when making contact with M.M., M.P. told Goldwasser he thought he was going "to get away with the first one . . . [his] attorney thought the boy would not take the stand."

Dr. Stewart similarly relied on her own examination of M.P., as well as his treatment records, and found the fact that M.P. reoffended while out on bail to be especially significant. Stewart concluded M.P.'s intelligence fell between the borderline and low average range of intellectual functioning and also found him to be a high risk to sexually reoffend. Dr. Stewart diagnosed M.P. with paraphilia, NOS and hebephilia, meaning that he "experiences recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving pubescent boys and occurring over a period of at least [six] months." Importantly, while she found M.P. to be a case of borderline pedophilia, Stewart did not concur with Dr. Goldwasser's diagnosis. She determined the evidence supported the conclusion that M.P. experienced deviant arousal from teenage, pubescent males as opposed to the attraction to prepubescent children characteristic of pedophilia.

Dr. Zakireh, M.P.'s expert witness, did not diagnose M.P. with pedophilia because M.P.'s victims were not prepubescent and the child pornography found on his computer suggested a homosexual attraction to pubescent and older males. Zakireh also disagreed that M.P. suffers from hebephilia since the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) does not include a clear diagnostic criteria for that disorder. Because he found M.P. has matured significantly in both his sexual attractions and understanding of his prior behaviors, Zakireh concluded M.P. would not likely reoffend and placed his risk of recidivism "probably closer to the lower end of the spectrum of moderate to high range."

Finally, M.P.'s father testified to M.P.'s excelling as an employee with the family's electrician business as well as a volunteer firefighter. He admitted being unaware of M.P.'s pervasive use of pornography either before or after M.P.'s first arrest. Additionally, he testified that M.P.'s family regularly visited him at the ADTC and STU and would assume an active supervisory and preventative role in M.P.'s daily life if he was released.

Following the hearing, the trial judge, in an oral decision, determined that the State presented clear and convincing evidence justifying an order of commitment. He found each of the State's experts particularly persuasive, although he ultimately agreed with Dr. Stewart that the evidence did not support a diagnosis of pedophilia in that the facts surrounding M.P.'s deviant behaviors and interest in child pornography pointed to hebephilia. The judge discounted Dr. Zakireh's testimony as unpersuasive and not entirely credible and found M.P. has serious difficulty controlling his sexually offending behavior. The trial judge concluded that M.P. was a sexually violent predator under the SVPA. He ordered M.P. committed to the STU and placed in Phase III of treatment, with a review to be held within seven months on September 26, 2011. The trial judge found

[C]lear and convincing evidence that [M.P.] has been convicted of sexually violent offenses . . . that he does suffer from a mental abnormality or personality disorder

. . . [and is] highly likely to engage in further acts of sexual violence, if not confined in a secure facility for control, care and treatment.

The State subsequently filed a motion for reconsideration. However, the parties entered into a consent agreement placing M.P. in an accelerated treatment track rather than Phase III and permitting the STU's Treatment Progress Review Committee to reexamine M.P.'s case earlier than the original hearing scheduled for September 26.

M.P. essentially raises two points on appeal: that (1) the ADTC diagnostic and summary reports should not have been admitted and (2) the State failed to prove that he requires commitment pursuant to the SVPA. An additional point that the court erred in failing to rule that M.P. was entitled to a conditional discharge as he no longer met the SVPA criteria for a sexually violent predator, was not raised before the trial judge. Given our decision, this point is moot.

II.

The SVPA authorizes the State to petition for an offender's involuntary commitment after he has completed serving his sentence. N.J.S.A. 30:4-27.28. To this end, the State must present at a hearing "clear and convincing evidence" that the offender (1) "has been convicted . . . for commission of a sexually violent offense"; (2) "suffers from a mental abnormality or personality disorder"; and, as a result, (3) is "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. A "mental abnormality" is one that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. One is likely to reoffend if he poses a danger to himself and others because of his present difficulty in controlling his dangerous sexual behavior. In re Commitment of W.Z., 173 N.J. 109, 132 33 (2002); see also id. at 129 ("[T]he Legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the Act's reach.").

"The scope of appellate review of a commitment determination is extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (citation and internal quotation marks omitted). We defer to the commitment court's factual and credibility findings in light of its opportunity to observe witness testimony firsthand, and to develop a "feel" of the case. Ibid. (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We also regard commitment judges as "specialists," and defer to "their expertise in the subject." Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). We will uphold a commitment judge's findings that are supported by "sufficient credible evidence present in the record." Id. at 175 (quoting Johnson, supra, 42 N.J. at 162). We do not modify a commitment determination unless "the record reveals a clear mistake." Ibid. (quoting In re D.C., 146 N.J. 31, 58 (1996)).

M.P. does not challenge the trial judge's finding as to the SVPA's first element. We therefore limit our discussion to the admission of the reports, the diagnosis of mental abnormality or personality disorder and the likelihood of recidivism.

III.

M.P. argues that the court erred in using the embedded hearsay within the ADTC evaluations prepared by non-testifying experts. It is well-established that experts may rely on hearsay evidence in making their diagnoses, so long as the documents reviewed are of a type normally relied upon by persons in their profession when making these assessments. N.J.R.E. 703. They may rely on presentence reports, ADTC evaluations, In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005), and criminal histories. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (citing State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001)), certif. denied, 179 N.J. 312 (2004). Such reliance is acceptable as long as the experts formulate their own opinions, and do not simply "parrot" the conclusions of the non-testifying experts. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491 92 (App. Div.), certif. denied, 185 N.J. 383 (2005). We are satisfied from our review of the record that the judge adhered to these principles.

Here, the trial judge made clear he relied on the testimony and reports of the State's expert witnesses in finding clear and convincing evidence that M.P. fell within the statutory definition of a sexually violent predator subject to civil commitment. In his decision, the judge found that both Goldwasser's and Stewart's reports fell within the business-records exception to the hearsay rule and were properly admitted. See N.J.R.E. 803(c)(6). Dr. Goldwasser, Dr. Stewart and Dr. Zakireh did not "simply agree with the opinions of other, non[-]testifying examiners." A.E.F., supra, 377 N.J. Super. at 489. Rather, each formed his or her own opinion based on an assessment of M.P.'s prior history and psychological and psychiatric deficiencies. We note that, although each expert testified to relying on M.P.'s diagnostic history in its entirety, no two arrived at the same conclusion regarding M.P.'s mental condition. Since experts may rely upon hearsay information in forming their opinion of an individual's mental condition, J.H.M., supra, 367 N.J. Super. at 612, and the ADTC reports are "of a type reasonably relied upon by experts" in psychiatry and psychology, the judge was within his discretion to consider the hearsay ADTC reports in assessing the experts' credibility. See In re Commitment of A.X.D., 370 N.J. Super. 198, 201 02 (App. Div. 2004).

M.P. also argues the State failed to meet its burden that he requires commitment as a sexually violent predator pursuant to the SVPA. We disagree. The judge credited Dr. Stewart's testimony diagnosing M.P. with hebephilia, and not pedophilia, as well as paraphilia, NOS. The judge also found Dr. Goldwasser's testimony persuasive and credible save for the pedophilia diagnosis, which the judge found not clearly and convincingly supported by the record. Lastly, the judge did not find Dr. Zakireh's "testimony as to lack of mental abnormality or personality disorder to be . . . persuasive."

As the Supreme Court noted in upholding the constitutionality of the SVPA, it is the "inability to control one's sexually violent behavior [that] is the very essence of the [statute]." W.Z., supra, 173 N.J. at 129. Contrary to Zakireh's assertion, "[i]t is not necessary that the Legislature define its class of targeted individuals by limiting the class to those with identified psychiatric diagnoses containing a finding of sexual compulsion as an element of the diagnosis." Ibid. (citing Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072, 2081, 138 L. Ed. 2d 501, 513 (1997)). Rather, the Legislature may "confine its targeted class of sex offenders subject to civil commitment because of their dangerousness by identifying the degree of lack of control that each must exhibit, tied to a finding of mental abnormality or illness." Ibid. The language of the SVPA indicates "the Legislature intended to insure that every individual who has a substantial inability to exercise control over sexually violent behavior would be within the Act's reach." Ibid.

Here, a review of the judge's decision does not "reveal[] a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citation omitted). We are satisfied that the judge did not err in determining that the evidence clearly and convincingly established that M.P. is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined.

That M.P. contends both Dr. Stewart and the trial judge considered the case to be a "close call" does not undermine our conclusion. Rather, their statements function merely as acknowledgments that under the heightened standard required by the Supreme Court for civilly committing an individual pursuant to the SVPA, see W.Z., supra, 173 N.J. at 133 34, each took their responsibility seriously and made a thorough review of all of the relevant information before recommending or ordering commitment. M.P. misapprehends the standard. Whether the State just meets its burden of proof by clear and convincing evidence or overwhelmingly exceeds it, it satisfies the burden nonetheless. The judge's rejection of a pedophilia diagnosis itself demonstrates his careful consideration of the evidence in arriving at his decision.

The Supreme Court recently reiterated that the question on appeal is whether there is "sufficient credible evidence in the record" to support the trial judge's findings. R.F., supra, 217 N.J. at 157. We are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Affirmed.

1 The MnSOST-R and Static-99 are actual risk assessment instruments (ARAIs) "designed to measure the risk of sexually violent recidivism." In re Care & Treatment of Palmer, 46 Kan. App.2d 805, 809 (2011). The purpose of these ARAIs is to allow "clinicians [to] observe the number of pre-defined risk factors that an offender demonstrates, and estimate the likelihood that an offender with a certain number of the pre-defined factors will recidivate, based on the observed recidivism rate in the risk measure's development sample." Article, Field Validity of the Static-99 and MnSOST-R Among Sex Offenders Evaluated for Civil Commitment as Sexually Violent Predators, 15 Psych. Pub. Pol. and L. 278, 279 (2009).