On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-66-00.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.37, committing J.P. to the State of New Jersey Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny. Following a commitment hearing at which the judge heard testimony from experts for both sides, the judge found that J.P. posed a threat to the community because he has a mental abnormality which predisposes him to commit acts of sexual violence.
J.P. joins in the appeal brought by R.S., ___ N.J. Super. ___ (App. Div. 2001) (A-6870-99T3), which has been argued with the present appeal, challenging the admissibility of actuarial assessment instruments at sex offender commitment hearings. J.P. also raises several constitutional challenges to the SVPA identical to those raised in the appeal brought by W.Z., ___ N.J. Super. ___ (App. Div. 2001) (A-6256-99T3), which has also been argued with the present appeal.
The unique issues raised by J.P. on this appeal concern the admissibility of actuarial assessment instruments against sex offenders whose offenses were committed while under age eighteen and the sufficiency of the evidence to support the trial judge's judgment of commitment in his particular case. J.P.'s arguments concerning these issues have some merit since the question of the admissibility of actuarial assessment instruments against juvenile sex offenders was not considered with any particularity by the trial judge and the State's experts offered little evidence aside from an institutional record review. Thus, we remand this matter for an evidentiary hearing concerning the admissibility of the actuarial assessments of J.P. The parties may supplement the actuarial and clinical testimony to the extent desired, subject to any limitations imposed by the judge. The judge may then decide the matter anew and, of course, the disappointed party may appeal.
On April 20, 2000 the Attorney General filed a petition for the civil commitment of J.P. under the SVPA. He had served the maximum on his custodial sentence by April 25, 2000. The petition was accompanied by two clinical certificates of involuntary commitment prepared by Neal Brandoff, D.O., and John J. Wilkins, D.O., certifying that J.P. 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 April 25, 2000 J.P. was temporarily committed to the NRU until a final hearing could be conducted on the issue of the continuing need for his involuntary commitment as a sexually violent predator.
A commitment hearing was held before Judge Perretti on September 28, 2000. Following testimony by two expert witnesses for the State and one expert for J.P., the judge found that J.P. qualified as a violent sexual predator. The judge entered an order on September 28, 2000 committing J.P. to the NRU and scheduling a review hearing for May 28, 2001.
In 1983, J.P., born on August 26, 1967, was sentenced to a term of thirty years in prison with fifteen years minimum parole ineligibility for the aggravated sexual assault of two women and the attempted aggravated sexual assault of a third. The offenses occurred when J.P. was fourteen and fifteen years of age; the judge determined that the nature of the offenses and J.P.'s extensive juvenile record warranted prosecution and sentencing as an adult. At the time of the aggravated sexual assaults, J.P. had a record of juvenile adjudications dating back to 1980 for such offenses as shoplifting, receiving stolen property, burglary, theft, robbery and criminal sexual contact. While incarcerated as a juvenile he had at least thirteen institutional charges.
J.P.'s three sexual assaults were committed in 1982 and involved very similar circumstances. In each case, J.P. grabbed a young woman around the neck from behind, threatened to kill her with a knife, dragged her to a secluded area, and took her money. In the first offense, J.P. removed the victim's clothes but she was able to escape before he performed sexual intercourse. In the other two offenses, J.P. forcibly raped the victims.
Prior to sentencing, J.P. was evaluated at the Adult Diagnostic and Treatment Center in Avenel for possible sentencing as a sex offender under the N.J.S.A. 2C:47-3. The staff psychologist who examined J.P. noted that he was a fifteen-year-old with a history of marijuana use and school suspensions. The psychologist concluded that J.P.'s "sexual offenses are only one part of an antisocial personality structure in an individual with limited knowledge. . . . There was no elicitation of a compulsive type of psychosexual pathology and, thus, the individual would not qualify under the purview of the New Jersey Sex Offender Act."
J.P. remained in state prison from 1983 until he completed his sentence on April 25, 2000 and was ready for release. He was not offered sex offender therapy, but he did complete a program for alcohol abuse and earned a GED certificate. J.P. received twelve institutional charges while incarcerated, including charges for fighting, attempting to commit an infraction, possessing and introducing narcotics paraphernalia, lying to staff and refusing to obey. The narcotics paraphernalia charge was brought in 1991. The record is silent as to when the other charges occurred.
In 1998, J.P. was evaluated by a Department of Corrections psychologist who concluded that he was "psychologically appropriate" for gang minimum security, full minimum security, community release or parole. The psychologist commented that J.P. did not present with any major thought disorders and did not appear to be an assault or escape risk.
On April 18, 2000 Dr. Brandoff prepared a clinical certification in which he reviewed J.P.'s criminal history, psychiatric history and the circumstances surrounding the 1982 aggravated sexual assaults. Brandoff diagnosed J.P. as suffering from alcohol and marijuana abuse and an antisocial personality disorder. A score of on the MnSOST-R risk assessment tool was reported along with a rating of "high risk." Brandoff concluded that J.P. suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence in the future.
On April 19, 2000 Dr. Wilkins prepared a clinical certification in which he diagnosed J.P. as suffering from an antisocial personality disorder. Wilkins' certification is much less detailed than that of Brandoff, with many paragraphs not completed or simply designated "N/A." Under "findings of psychological testing or risk assessment tools," Wilkins lists Brandoff's report of on the MnSOST-R.
Prior to J.P.'s commitment hearing, reports were prepared by Dr. Stanley R. Kern, a psychiatrist employed by the NRU, Dr. Merrill Berger, a psychologist employed by the Division of Mental Health Services, and Dr. Paul F. Fulford, a psychologist retained on behalf of J.P. All parties stipulated to the qualifications of these experts.
Kern testified that he prepared his report on September 18, 2000 based solely on J.P.'s history without conducting a clinical interview. This was due to a miscommunication with the guards and not to any fault of J.P. Kern diagnosed J.P. as suffering from alcohol abuse, cannabis abuse and an antisocial personality disorder. J.P. has no mental deficiency or psychotic process, but his emotional and volitional functions are impaired as a result of his personality disorder. In Kern's opinion, J.P. is a violent sexual predator who needs to be confined for custody, care and treatment at the NRU.
Kern explained that he conducted a clinical interview of J.P. on September 25, 2000 and that the interview did not change his opinions on J.P.'s diagnosis and classification. He never asked J.P. why he had committed the crimes or whether he felt any remorse. On several occasions while testifying, Kern seemed unfamiliar with J.P.'s criminal and custodial history. He concluded his testimony by stating that all individuals with antisocial personality disorders should be incarcerated.
A "Comprehensive Achival [sic] Review and Summary of Psychological Testing" was prepared for J.P. by Dr. Berger on September 23, 2000. Berger testified that her report was based upon a review of J.P.'s records and a review of psychometric testing performed by others. Berger conducted a clinical interview of J.P. on September 27, 2000 but did not testify concerning that assessment because no report had been provided to J.P.'s attorney. She did state that the interview had not changed the opinions given in her original report.
In her report, Berger wrote that J.P. was a regular and attentive participant in process groups at the NRU, but that "[i]t is clear from the progress notes that [J.P.] has considerable work to do in the areas of gaining a complete understanding of his sex offense cycle and his feelings of anger toward women." While J.P. "has avoided serious interpersonal conflict on the housing unit, there is evidence that he has aligned himself with some severely antisocially oriented residents. ...