On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-31-99.
Before Judges King, Coburn and Axelrad.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from a judgment rendered under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.37, committing W.Z. to the Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny. Following a commitment hearing at which testimony from experts for both sides was presented, the judge found that W.Z. poses a threat to the community because he has a mental abnormality which predisposes him to commit acts of sexual violence. In reaching this conclusion, the judge held that the SVPA is applicable to offenders such as W.Z., who have volitional control of their sexual impulses, but who otherwise lack the emotional capacity to control their dangerousness.
On appeal, W.Z. joins in the appeal brought by R.S., ___ N.J. Super. ___ (App. Div. 2001) (A-6870-99T3), which we heard on the same calendar as W.Z.'s appeal, challenging the admissibility of actuarial assessment instruments at sex offender commitment hearings. We reach the same result here as in R.S. and for the reasons there expressed. In addition, W.Z. raises several constitutional challenges to the SVPA. He argues that commitment must be limited to those individuals who totally lack volitional control of their violent sexual acts, disputes the definitions of the terms "likely," "propensity" and "threat" contained in N.J.S.A. 30:4-27.26, and questions the meaning of "likely" in § 27.26 in light of the clear and convincing evidence standard. We find no constitutional flaws and affirm the commitment order.
On December 10, 1999 the Attorney General filed a petition for the civil commitment of W.Z. under the SVPA. The petition was accompanied by two clinical certificates of involuntary commitment prepared by Leonard B. Achor, M.D., and James R. Varrell, M.D., certifying that W.Z. is a violent sexual offender who suffers from a mental abnormality or personality disorder which makes him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment. On December 10, 1999 W.Z. was temporarily committed to the NRU until a final hearing on the issue of the continuing need for involuntary commitment as a sexually violent predator.
At the final commitment hearing before Judge Philip M. Freedman on April 17 and 19, 2000 the State presented testimony from two expert witnesses; W.Z. presented testimony from one expert witness, himself and his father. The judge rendered his final decision on June 14, 2000 concluding that W.Z. is a violent sexual predator. Judge Freedman entered a judgment on June 29, 2000 committing W.Z. to the NRU and scheduled a review hearing for April 19, 2001.
On January 27, 1995 W.Z. was sentenced to eighteen months in the New Jersey State Prison for fourth-degree criminal sexual contact, five years for making terroristic threats, and five years for aggravated assault. These three sentences were imposed concurrently. When W.Z. served his maxim sentence, he was temporarily committed to the NRU on December 13, 1999.
W.Z., born on June 10, 1966, has an extensive criminal and juvenile history starting at age twelve. W.Z. was adjudicated a juvenile delinquent for offenses that included possession of marijuana (two counts), assault and battery, joyriding (three counts), larceny, theft (four counts), driving without a license (three counts), criminal trespass, eluding a police officer (two counts), aggravated assault (three counts), criminal sexual contact, burglary (three counts), receiving stolen property, obstructing the administration of a law, disorderly conduct (two counts), terroristic threats (two counts), resisting arrest and drinking in public. W.Z. was incarcerated at the Youth Correctional Facility at Jamesburg several times between 1978 and 1984. As an adult, W.Z. incurred convictions for simple assault (four counts), resisting arrest (four counts), receiving stolen property, burglary (two counts), aggravated assault (three counts), terroristic threats (three counts), eluding a police officer, attempted sexual assault, and criminal sexual contact.
W.Z.'s first sexual offense occurred in 1982 at age 16 when he suddenly beat-up a female whom he said he was "comforting" after a man hit her. W.Z. denied sexually assaulting the victim and blamed the incident on LSD he said was put into his drink at a party. He was sent to the reformatory at Jamesburg for aggravated assault and criminal sexual conduct.
W.Z.'s second sexual offense occurred in 1989 when he physically assaulted and attempted to rape a woman he met in a bar. After they left the bar, W.Z. grabbed the woman in a headlock, dragged her into the woods, repeatedly punched her in the face, and choked her until she passed out. W.Z. then began removing the woman's clothing, but was frightened away by the police before raping her. W.Z. also denied assaulting this victim, saying that she agreed to have sex with him, but that she got nasty and he had to defend himself.
W.Z.'s more recent conviction for criminal sexual contact resulted after he accosted a woman at a train station, lifted her skirt above her head, and grabbed her buttocks. W.Z. stated that he was drunk at the time of this incident and has no recollection of what took place.
During his five-year incarceration, W.Z. received fifteen institutional disciplinary charges, including charges for refusing to obey, lying to officers, encouraging group demonstrations, threatening bodily harm, fighting, assault with a weapon and disruptive conduct. W.Z. testified that one of the charges resulted in his placement in administrative segregation for eighteen months. W.Z. attempted suicide while in prison, necessitating psychiatric hospitalization.
W.Z. was evaluated at the Adult Diagnostic Treatment Center in Avenel in 1991, following his conviction for attempted sexual assault and aggravated assault. Dr. Kenneth McNiel, who conducted the examination, reported that W.Z.'s abstract-reasoning potential fell within the 84th percentile, with a full scale I.Q. of 108, placing him within the average range of intellectual functioning. McNiel wrote that his clinical impression of W.Z. was of "an antisocial personality disorder with narcissistic features. Issues of clinical concern include interpersonal exploitiveness, lack of empathy for others, hedonistic self-indulgence, violence potential and anger towards women." This sexual assault "was more an act of antisocial violence and impulsive exploitation than an act of sexual compulsivity." Curiously, allegedly because W.Z. did not exhibit a pattern of repetitive, compulsive sexual behavior, McNiel concluded that he was not eligible for sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
On December 9, 1999 Dr. Achor prepared a clinical certificate in which he described W.Z. as "uncooperative," "agitated" and in a "depressed, angry" mood. Achor diagnosed W.Z. as suffering from episodic alcohol dependence, depression and mixed personality disorder. In a clinical certificate prepared on December 10, 1999 Dr. Varrell similarly noted W.Z.'s lack of cooperation and arrived at a diagnosis of dysthymia, alcohol dependence in remission, intermittent explosive disorder, and antisocial personality disorder.
Shortly after arriving at the NRU, W.Z. was evaluated by Dr. Jackson Tay Bosley, a psychologist employed by the Division of Mental Health Services. Bosley conducted two interviews of W.Z. and reviewed available records. However, because W.Z. refused to cooperate with the assessment procedures, reportedly under the advice of his attorney, Bosley felt that little information was obtained from the interviews. Bosley wrote that "the guiding principle in [W.Z.'s] life appears to be 'I do what I like without considering the costs'" and concluded that W.Z.'s primary diagnosis was antisocial personality disorder. Bosley also noted that "[a]lthough [W.Z.] denies any participation in racist organizations, his correspondence with the leader of a white supremacist organization, and instructions to create a secret cell (and obtain handguns) causes some concern. His intelligence and grandiosity also make these kinds of plans worrisome."
At the commitment hearing, the State presented testimony from Bosley and Dr. Stanley Kern, a psychiatrist employed by the NRU. W.Z. presented testimony from Dr. Anthony Vincent D'Urso, a licensed clinical psychologist and assistant professor at Montclair State University. The testimony of these experts was surprisingly consistent and raised few issues of fact.
Kern diagnosed W.Z. as suffering from intermittent explosive disorder, alcohol abuse and an antisocial personality disorder with narcissistic tendencies. Kern testified that W.Z. needed to be retained at the NRU because his mental disorder affects his emotional and volitional functions causing him to behave in an antisocial fashion and present a danger to society.
Bosley testified that W.Z. was not suffering from any sort of paraphilia or sexual compulsion. W.Z. could have chosen not to act in the way he did, but instead he made a conscious choice to hurt his victims sexually and to use sex as a weapon. W.Z. does not have the ability to control his antisocial personality and poses a risk for future sexually-offensive behavior based upon his past acts, his inability to recognize his problem, and his disregard for the welfare of females.
The results of several actuarial risk assessment instruments were introduced into evidence at the commitment hearing. Bosley discussed the results of the Minnesota Sex Offender Screening Test Revised (MnSOST-R), the California Actuarial Risk Assessment Tables (CARAT), the Adult Sex Offender Risk Assessment Schedule (ASORAS), the New Jersey Registrant Risk Assessment Scale (RRAS) and the Static 99. W.Z. ranked in the high-risk category on all of the instruments except the RRAS where he fell into the moderate risk category.
Bosley explained that he used so many different tools in the evaluation because it is helpful to get as much information as possible. He said the fact that most of the tools support a picture of a very high risk individual is meaningful. If there had been a wide discrepancy in the results, Bosley would have been less sure of his determination.
D'Urso summarized W.Z.'s psychological profile as follows:
[W.Z.] had a tendency to deny and minimize his prior offenses. But despite that attempt at - - at minimizing on test[s] his dynamics reflect a highly impulsive, immature, hedonistic adult. He obviously has problems with authority; has been aggressive and hostile in the past. He does not appear to learn from some of those antisocial behaviors. He tends to be somewhat exploitive and self- centered. He has his own – as all of us do -- set of needs but his reaction into not getting his needs met tends to be somewhat aggressive. He uses his aggression instrumentally, purposefully to get people to do what he wants.
It does not appear that he's had sustained relationships, intimate relationships with people. He's demonstrated little patterns of remorse. His profile did not reflect obsessive and compulsive sexual thoughts. He did not appear to have any confusion, thought disorder, hallucinations, delusions that would suggest that he couldn't control his impulses. His insight into his own behavior and motivation for change are poor. He doesn't seem to have anticipatory judgment looking at situations and anticipating what frustrations can occur in anticipating his own reactions.
D'Urso explained that W.Z. has a personality disorder. Personality disorders are characteristic ways of functioning in the world. . . . In his case an antisocial personality disorder says that he tends to violate the rules of others. But that disorder is not the same type of involitional behavior that biologic depression would show, psychosis, bipolar disorder, which tend to be biochemical disorders. . . . So in that sense this personality disorder, antisocial personality disorder, is not a mental incapacity. It is descriptive of a way people act in society.
D'Urso did not dispute Bosley's testimony and in fact agreed that W.Z. presents a high risk for repeating his aggressive, antisocial conduct. Because W.Z. had used sex as a weapon in the past, D'Urso ...