IN THE MATTER OF THE CIVIL COMMITMENT OF T.W.

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NOT FOR PUBLICATION WITHOUT THE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 T.W., SVP-636-12.

_____________________________________________

July 21, 2015

Submitted May 19, 2015 Decided

Before Judges Guadagno and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-636-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

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

PER CURIAM

T.W. appeals from a December 10, 2012 order finding that he continues to be a sexually violent predator and involuntarily committing him to the Special Treatment Unit under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The order was entered after a hearing, at which a psychiatrist and psychologist testified for the State and a psychologist testified for the defense.

On appeal, T.W. raises the following points

point i

by allowing the state's experts to base their diagnoses and conclusions on alleged facts established through inadmissible hearsay, the svpa proceeding violated the fourteenth amendment of the united states constitution and new jersey constitution, article I, paragraph 10 (procedural due process, equal protection and substantive due process clauses).

a. application of criminal due process protections to civil cases.

b. the state cannot evade the confines of apprendi/blakely/shepard through the backdoor of r.703.

point ii

the trial court erred as a matter of law in not considering or granting a conditional release where the state failed to prove by clear and convincing evidence that t.w. would be substantially likely to commit a sexually violent offense in the reasonably foreseeable future if he were so discharged.

We conclude that the State demonstrated by clear and convincing evidence that T.W. has a mental abnormality or personality disorder which makes it "highly likely that he will not control his . . . sexually violent behavior and will reoffend" in "the reasonably foreseeable future." In re Commitment of W.Z., 173 N.J. 109, 131-32 (2002).

In 1981, T.W. was charged with robbing, assaulting, and sexually assaulting V.W. at knifepoint. He pled guilty to aggravated assault and first-degree robbery, and the sexual assault charges were dismissed.

In 1984, T.W. pled guilty to assaulting and robbing a female impersonator whom he approached for sex. He was sentenced to an indefinite prison term not to exceed five years. In 1987, ten months after his release from prison, T.W. vaginally and anally penetrated his girlfriend's two-year-old granddaughter, L.D., after she was left in his care. The child required two surgeries to repair damage to her vagina and rectum. T.W. pled guilty to aggravated sexual assault, aggravated assault, and endangering the welfare of a minor. He was sentenced to a thirty-year term with a ten-year period of parole ineligibility.

In 2012, the State filed a petition for civil commitment under the SVPA. During the commitment hearing, Dr. Roger Harris, a psychiatrist, testified that he diagnosed T.W. with paraphilia and sexual sadism and found that his sexual assaults demonstrated "arousal to hurting, humiliating or causing damage to other individuals." Dr. Harris also diagnosed T.W. with borderline intellectual functioning with cognitive impairment and polysubstance dependence. Dr. Harris concluded that, without confinement, T.W. was highly likely to sexually reoffend.

Dr. Nicole Paolillo, a psychologist, testified that she diagnosed T.W. with sexual sadism, bi-polar disorder, anti-social personality disorder, and polysubstance dependence. Dr. Paolillo also found that T.W. was highly likely to sexually reoffend unless he is confined in a secure treatment facility.

Dr. Timothy Foley, a psychologist, testified on behalf of T.W. Dr. Foley refused to consider the 1981 incident because it did not result in a conviction of a sexual nature. Dr. Foley opined that T.W.'s drug use was a significant contributor to the 1987 incident because T.W. told him that when he raped L.D. he was high on PCP.

Judge Philip M. Freedman rejected Dr. Foley's conclusions and credited the testimony of Drs. Harris and Paolillo in finding all of the requisite criteria under the SVPA. He accepted the conclusion that T.W. suffered from sexual sadism and displayed a complete indifference to the life and safety of the two-year-old victim.

The SVPA authorizes courts to civilly commit an individual if the State proves by clear and convincing evidence that the individual is a sexually violent predator who, if released into the community, would be highly likely to sexually reoffend. N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32(a); W.Z., supra, 173 N.J. at 131-32. The trial court's determination "should be modified only if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996).

T.W. claims that the State improperly relied on inadmissible hearsay contained in documents relating to the 1981 matter. T.W. argues that the State's experts should have based their conclusions on "independently confirmed facts, rather than unconfirmed allegations embedded in inadmissible hearsay."

We review the evidentiary ruling of a trial judge utilizing the abuse of discretion standard. State v. Brown, 170 N.J. 138, 147 (2001). Although hearsay is inadmissible hearsay, see N.J.R.E. 802, an expert who substantially relies on hearsay evidence to form an opinion may testify at trial if the hearsay information "was of a type 'reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (quoting N.J.R.E. 703) certif. denied, 179 N.J. 312 (2004). "A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition." Ibid.

Dr. Paolillo testified that she prepared her report based on information provided by T.W. and documents in the file, including police reports, victim statements, and reports from other clinicians. Dr. Paolillo considered the September 27, 1981 assault of V.W. to be a prior sexual offense even though T.W. did not plead guilty to sexual assault. Relying on the presentence report, she noted that the victim reported that T.W. "assaulted her for three hours, during which he vaginally penetrated her three times, forced her to perform fellatio, and then he urinated on her face." Police responded when they heard V.W. screaming and observed that her face was injured and she was naked from the waist down. T.W. was then observed vaulting a fence and fleeing the scene while zipping up his pants.

T.W. told Dr. Paolillo that he knew V.W., but denied raping and assaulting her. He claimed he was walking with her when someone snatched her purse. He chased after the thief, only to be later accused of rape by the friend he was trying to help.

Dr. Harris considered the 1981 incident a sexual offense. He reviewed the presentence report and a victim statement from that incident along with information from the 1984 and 1987 convictions.

Although T.W. now denies sexually assaulting and robbing V.W., there is no indication in the record that T.W. ever objected to the 1981 presentence report, and his tale of chasing after a purse-snatcher is contradicted by his guilty plea that he assaulted V.W. We find no abuse of discretion by Judge Freedman in allowing and considering the testimony of Drs. Paolillo and Harris as to the 1981 incident.

The remainder of T.W.'s arguments lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E). We affirm the December 10, 2012 order based on Judge Freedman's thorough and comprehensive decision.

Affirmed.