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

RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-2574-15T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF T.W., SVP-131-00.


                 Argued October 2, 2018 – Decided November 2, 2018

                 Before Judges Rothstadt and Gilson.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Essex County, Docket No. SVP-131-00.

                 Susan Remis Silver, Assistant Deputy Public Defender,
                 argued the cause for appellant T.W. (Joseph E. Krakora,
                 Public Defender, attorney; Susan Remis Silver, on the
                 brief).

                 Stephen J. Slocum, Deputy Attorney General, argued
                 the cause for respondent (Gurbir S. Grewal, Attorney
                 General, attorney; Melissa H. Raksa, Assistant
                 Attorney General, of counsel; Stephen J. Slocum, on
                 the brief).

PER CURIAM

       T.W. is a sixty-three-year-old man who has been civilly committed since

2000 under the Sexually Violent Predator Act (SVPA),  N.J.S.A. 30:4-27.24

to -27.38. He appeals from judgments entered on January 27, 2016 and October
17, 2017, following his most recent civil commitment review hearing. T.W.

argues that those two judgments relied on a hearsay statement by his wife, which

has now been recanted, and that the State's experts relied on hearsay regarding

sexual assault charges that had been dismissed. Because the current record does

not adequately address whether and to what extent the most recent judgments

were based on hearsay, including the wife's statement, and whether the wife's

statement is still reliable, we remand for a re-hearing of the civil commitment

review.

                                       I

      In July 1974, T.W. was arrested and charged in connection with a series

of attacks against six different women committed between March and May 1974.

All six of those events involved forced entries into homes. In two of the

situations, T.W. forcefully raped two victims, and in three different situations

he physically assaulted three other victims. T.W. pled guilty to two counts of

rape, attempted rape, three counts of breaking and entering, and assault. He was

sentenced to thirty years in prison. In January 1983, T.W. was paroled.

      In September 1983, he was arrested and charged with three attacks on

three separate women committed in August 1983. The State dismissed the

sexual assault charges related to two of the attacks. Thereafter, in 1984, T.W.


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was convicted of robbery stemming from charges that he attacked a woman in a

parking lot and unsuccessfully tried to pull her into a stairwell. The victim

escaped, and T.W. stole her purse. He was sentenced to twenty years in prison.

      T.W. was first civilly committed under the SVPA in 2000. He has had a

series of review hearings, and his commitment has been continued. We have

reviewed and affirmed at least three of those judgments of continued civil

commitment. In re Civil Commitment of T.W., No. A-2712-11 (App. Div. June

15, 2012); In re Civil Commitment of T.Q.W., No. A-3904-04 (App. Div. Nov.

4, 2005); and In re Civil Commitment of T.Q.W., No. A-3360-03 (App. Div.

Oct. 13, 2004).

      At a review hearing conducted on January 7, 2004, T.W.'s wife testified.

The wife was apparently called by T.W.'s counsel to explain that if released,

T.W. would be living with her. She testified that she had met T.W. in 1998

while he was incarcerated and that they had married in 2002. The wife also

explained that she was aware of T.W.'s criminal history because T.W. had told

her about his past criminal conduct, including that he had raped women.

      On cross-examination by a deputy attorney general, the following

questions and answers were given:

            Q.    You say that [T.W.] has discussed his crimes with
            you in detail.

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                                      3
            A.    Absolutely, yes.

            Q.    Has admitted to you that he raped in 1983?

            A.    Yes.

The judge conducting the review hearing then followed up and the following

exchange took place:

            Q.    Ms. [W.], do I understand you correctly that you
            have heard from [T.W.] that he raped in 1983?

            A.    Yes.

            Q.    He has acknowledged rapes in 1983 to you?

            A.    Yes.

      T.W.'s most recent review hearing was held on January 11, 2016. At that

hearing, the State presented expert testimony from a psychologist, Dr. Christine

Zavalis, and a psychiatrist, Dr. Howard Gilman. T.W. called psychologist Dr.

Barry Zakireh.

      Both of the State's experts discussed T.W.'s criminal history, including his

convictions for rapes in 1974 and their understanding of the three offenses in

1983. The State's experts pointed out that T.W. was only convicted of robbery

in 1983, and they both noted that T.W. denied that the robbery was sexual in

nature. Nevertheless, in offering their opinions as to T.W.'s mental status and


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likelihood of committing sexual assaults if released, the State's experts both

discussed and analyzed the 1983 charges as sexual assaults. In so doing, the y

referenced the criminal record of the 1983 incidents. Both experts also testified

that they relied on the type of information normally relied on by experts in their

field.

         Dr. Zavalis then diagnosed T.W. as suffering from a paraphilic disorder

(non-consent), voyeuristic disorder, and antisocial personality disorder.

Dr. Gilman diagnosed T.W. with sexual sadism, voyeuristic disorder, and

antisocial personality disorder. Both doctors opined that T.W. would likely pose

a high risk of committing a sexually violent act if released.

         In contrast, Dr. Zakireh, T.W.'s expert, opined that T.W. was not highly

likely to reoffend if released in 2016.      Dr. Zakireh diagnosed T.W. with

antisocial personality disorder and voyeuristic disorder. Dr. Zakireh, however,

noted that T.W. was over fifty years of age and in poor physical health. Thus,

he reasoned that T.W. had a low risk of reoffending.

         The trial court issued its initial decision on January 27, 2016, and

explained the reasons for its ruling on the record. The court relied on the

testimony given by the State's experts and rejected the testimony offered by

T.W.'s expert. In considering the use of the 1983 offenses as sexual in nature,


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                                         5
the court reviewed the record of the testimony of T.W.'s wife in 2004.

Specifically, the court read into the record the transcripts of the wife's testimony

given at the 2004 recommitment hearing, when the wife testified that T.W. had

admitted to her that he had engaged in "rapes" in 1983. The court also noted

that, under certain circumstances, charges that do not result in convictions can

be used clinically by experts.

      The court then credited the State's experts' diagnosis of paraphilic disorder

(non-consent) and antisocial personality disorders. It also accepted the State's

experts' opinions and found that T.W. still had a highly likely risk of committing

a sexually violent offense if released. Thus, the court found that the State had

proven each of the elements required by the SVPA by clear and convincing

evidence. Accordingly, on January 27, 2016, the court entered a judgment

continuing T.W.'s commitment.

      T.W. appealed from the January 27, 2016 judgment. While his appeal was

pending, in July 2017, T.W. moved to supplement the record with a certification

from his wife. The certification was dated September 15, 2016, and in it the

wife recanted her testimony from the 2004 hearing. Specifically, the wife

certified that T.W. had never told her he committed any rape in 1983. She also

certified that she had been confused by the questioning in 2004. In August 2017,


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                                         6
we remanded this matter and directed the trial court to consider the wife's

certification and issue a new decision.

      On remand, the court did not conduct a new hearing. Instead, because the

court learned that T.W.'s wife had since passed away, the court decided a hearing

was not necessary. The court, therefore, went on the record on October 17,

2017, to address the remand. Apparently, neither the State nor counsel for T.W.

were given notice of the trial court's decision not to conduct a hearing. Instead,

the court went on the record without any appearances and explained that it would

issue a new judgment continuing T.W.'s civil commitment.

      The court gave two bases for that decision. First, the court explained that

it was not convinced that the recanting certification was reliable and, therefore,

the testimony from the 2004 hearing was still valid. Second, the court reasoned

that the State's experts who testified at the January 11, 2016 review hearing had

not relied on the wife's statement concerning T.W.'s admission of rapes in 1983.

The court pointed out that both of the State's experts understood that T.W. was

denying that he had engaged in any sexual assaults in 1983, and they were

relying on the criminal record rather than the wife's statement. Accordingly, on

October 17, 2017, the trial court issued a new judgment continuing T.W.'s civil

commitment to the Special Treatment Unit.


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                                          7
                                       II

      T.W. now appeals from both the January 27, 2016 and the October 17,

2017 judgments. He makes four arguments: (1) his most recent commitment

was based on inadmissible and incompetent hearsay; (2) the trial court's decision

on remand is based on the wife's inadmissible and unreliable hearsay and the

State's experts also relied on inadmissible hearsay from the criminal record; (3)

the commitment judgment should be reversed because the State's experts offered

only net opinions; and (4) the State introduced no evidence that T.W. has a

current mental abnormality or personality disorder that makes him a current risk

of being highly likely to sexually offend.

      The Legislature's purpose in enacting the SVPA was "to protect other

members of society from the danger posed by sexually violent predators." In re

Civil Commitment of J.M.B.,  197 N.J. 563, 570-71 (citing  N.J.S.A. 30:4-27.25).

Thus, the SVPA provides for the involuntary commitment of any person found

by the court to be a sexually violent predator within the meaning of the statute.

 N.J.S.A. 30:4-27.32(a). The statute defines a sexually violent predator as:

            [A] person who has been convicted, adjudicated
            delinquent or found not guilty by reason of insanity for
            commission of a sexually violent offense . . . and
            suffers from a mental abnormality or personality
            disorder that makes the person likely to engage in acts


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            of sexual violence if not confined in a secure facility
            for control, care and treatment.

            [N.J.S.A. 30:4-27.26.]

      To justify commitment of an individual under the SVPA, the State must

prove "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." In re Commitment of W.Z.,  173 N.J. 109, 132 (2002). The court must consider the individual's "present serious

difficulty with control over dangerous sexual behavior" and the State must

establish "by clear and convincing evidence . . . that it is highly likely that the

person . . . will reoffend." Id. at 132-34.

      Our review of a trial court's decision in a commitment proceeding under

the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C.,  407 N.J. Super. 619, 630 (App. Div. 2009) (first citing In re Civil Commitment of

J.M.B.,  395 N.J. Super. 69, 89 (App. Div. 2007), aff’d,  197 N.J. 563 (2009);

then citing In re Civil Commitment of V.A.,  357 N.J. Super. 55, 63 (App. Div.

2003)), aff’d,  204 N.J. 179 (2010). Further, we "must give the 'utmost deference'

to the reviewing judge's determination of the appropriate balancing of societal

interest and individual liberty." Ibid. (quoting In re Commitment of J.P.,  339 N.J. Super. 443, 459 (App. Div. 2001)). Modification is only proper on appeal

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                                         9
when the record reveals a clear abuse of discretion. Ibid. (citing J.M.B.,  395 N.J. Super. at 90).    Accordingly, a reviewing court has a responsibility to

"canvass the record, inclusive of the expert testimony, to determine whether the

findings made by the trial judge were clearly erroneous." Ibid. (citing In re D.C.,

 146 N.J. 31, 58-59 (1996)).

      At the commitment hearing, the State must establish three elements: (1)

that the individual has been convicted of a sexually violent offense; (2) that he

or she suffers from a mental abnormality or personality disorder; and (3) that as

a result of his or her psychiatric abnormality or disorder "it is highly likely that

the individual will not control his or her sexually violent behavior and will

reoffend." In re Civil Commitment of R.F.,  217 N.J. 152, 173 (2014) (quoting

W.Z.,  173 N.J. at 130).

      Here, T.W.'s principal argument is that the most recent judgments relied

on the inadmissible and unreliable hearsay testimony of his now-deceased wife.

T.W. also argues that the State's experts based their opinions on hearsay

consisting of police reports, victim statements, and other items from the criminal

record concerning the dismissed sexual assault charges from 1983.

      In opposition, the State contends that it did not use the wife's testimony to

meet its burden at the January 11, 2016 hearing. It also argues that experts are


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permitted to rely on hearsay information, such as presentence reports, police

reports, and prior psychological evaluations, in forming opinions concerning an

individual's mental status because such evidence is of the type that experts in

that field normally rely upon.

      In certain circumstances, hearsay may be relied upon by experts if the

information is of a type "reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject." State v. Torres,  183 N.J.
 554, 576 (2005) (quoting N.J.R.E. 703). For example, hearsay from presentence

reports can form the basis of an expert opinion because "such evidence [is] of a

type reasonably relied on by mental experts in formulating their evaluations of

an individual's mental condition." In re Civil Commitment of J.H.M.,  367 N.J.

Super. 599, 612 (App. Div. 2003).

      Nevertheless, due process liberty interests can come into play. Therefore,

a court must assesses the reliability of the expert's testimony. "[T]here is a

tipping point where due process is violated by the use of hearsay."          In re

Commitment of G.G.N.,  372 N.J. Super. 42, 58 (App. Div. 2004).               If an

"unproven allegation . . . provide[s] a significant building block" in an expert

opinion, "it would present a troubling issue since significant state action, such

as SVPA commitment, cannot and should not be based on unproven allegations


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                                       11
of misconduct." In re Civil Commitment of A.E.F.,  377 N.J. Super. 473, 490

(App. Div. 2005). Accordingly,

            [w]e expect the SVPA hearing judges to carefully
            scrutinize [prior clinical evaluation material] so that its
            use is not abused. And the same may be said of factual
            information concerning the committee's offenses
            contained in [presentence investigation reports] or in
            medical evaluations, where the committee denies that
            the crime took place as reported. The fact that the
            testifying expert parrots Rule 703, that such hearsay is
            of a type "reasonably relied upon" by experts in their
            field, does not shield all such hearsay from scrutiny. . . .
            Important rights are at stake and judicious use of
            hearsay must be the standard.

            [Id. at 492-93 (citation omitted).]

      The current record does not allow us to adequately review what the State's

experts relied upon and the basis for their testimony. At the review hearing

conducted in January 2016, both of the State's experts made reference to and

relied on events in 1983. In accepting that testimony, the trial court relied on

the wife's testimony given in 2004. Because there was no evidentiary hearing

on the remand, we cannot determine whether the State's experts relied on the

now-deceased wife's testimony from 2004 or on other independent information.

Moreover, if the State's experts did not rely on the wife's testimony, then the

trial court needs to assess the factual basis for their testimony without regard to

the wife's hearsay. Such an assessment has not been made because, as we point

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out, the trial court relied on the wife's testimony in finding the experts' testimony

reliable. Accordingly, we remand for a re-hearing.

      At the re-hearing, the State is directed to submit new expert reports

addressing whether T.W. continues to suffer from a mental abnormality or

personality disorder and whether he cannot control his sexually violent behavior

and would be highly likely to reoffend if released. The experts will need to

detail whether they are relying on the statement made by the wife concerning

T.W.'s admission that he committed "rapes" in 1983. If the experts are not

relying on that information, they need to identify the specific information they

are relying on concerning the events in 1983. T.W. should then be allowed to

respond, including addressing why the wife's recanting certification, dated

September 15, 2016, makes her testimony from 2004 unreliable.

      On a more complete record, the trial court can then determine (1) whether

and to what extent the wife's testimony from 2004 is still reliable in light of her

certification from 2016, and (2) whether there is an independent, reliable basis

to accept the experts' testimony concerning the events in 1983 if they are not

relying on the wife's testimony.




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                                        13
      Thus, this matter is remanded for a re-hearing. We further direct that the

hearing be conducted within sixty days of the date of this opinion and that a new

judgment be entered no later than ninety days from the date of this opinion.

      Remanded. We do not retain jurisdiction.




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