On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-249-02.
Before Judges Carchman, Wecker and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
E.S.T. appeals from a judgment committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We conclude that the testimony of the experts on behalf of the State at the initial commitment hearing, N.J.S.A. 30:4-27.29, relied to an unacceptable extent upon hearsay opinions and findings by other experts that E.S.T. did not have the opportunity to challenge, resulting in a commitment process that was fundamentally unfair.
The facts underlying E.S.T.'s commitment are not pleasant, as is commonly the case with SVPA committees. The crimes that led to E.S.T.'s present commitment all took place in the summer of 1985. On May 26, 1985, E.S.T., who was then twenty-three years old, entered a home and, at knife point, raped a young woman after first forcing her to perform oral sex on him. On July 25, 1985, E.S.T. entered another home and, again at knifepoint, forced a young woman to perform an oral sex act on him. On July 28, 1985, once again armed with a knife, he entered a home and sexually groped a woman, but fled before performing any further sexual act as a result of her screams and fighting.
When subsequently questioned by the police, E.S.T. admitted his involvement in each of those crimes, as well as his participation in robberies on July 18 and July 27, 1985.
On July 29, 1986, pursuant to a negotiated agreement, E.S.T. pled guilty to sexual assault and attempted sexual assault charges arising from the May 26 and July 28, 1985 incidents, and to second-degree robbery stemming from the July 27, 1985 incident. The plea agreement called for various consecutive and concurrent sentences aggregating thirty years with fifteen years of parole ineligibility. E.S.T. was sentenced on that same date in accordance with the negotiated plea. E.S.T.'s sentence did not commit him to the Adult Diagnostic and Treatment Center (ADTC) for sex offender treatment, and there is no indication that the mandatory evaluation was ever made. N.J.S.A. 2C:47-1 to -8; R. 3:21-3. In any event, even if there was such a referral, E.S.T. was not committed to the ADTC.*fn1 The record does not reflect any appeal of the sentence.
There is no clear evidence that E.S.T. received or was offered any sex offender treatment during his time in State Prison, although he did participate in"anger management and behavior modification modules." E.S.T. served about seventeen years in prison before the State filed its SVPA commitment petition on June 4, 2002. The petition noted that he was scheduled to"max out" on his sentence"on or about June 12, 2002."
E.S.T.'s criminal record prior to the 1985 incidents revealed a burglary and larceny conviction in June 1982 with a thirty-day suspended sentence and two years probation; a municipal court theft, criminal mischief, resisting arrest and simple assault conviction on February 22, 1982, with a sentence of fifteen days in county jail, together with a charge of contempt of court with a three-day county jail sentence on the same date; and finally, a May 28, 1985 arrest for simple assault, which was never adjudicated due to his failure to appear (perhaps because of the pending sex crimes charges). The June 1982 conviction resulted in a September 1983 violation of probation and an indeterminate term at Yardville, from which he was paroled on June 12, 1984, only a year before his 1985 crimes. Indeed, it appears that he was on parole when he committed the 1985 crimes.
In prison, E.S.T. had a July 8, 1992 adjudication of an attempt to commit an unknown infraction, with a sanction of detention and loss of recreational privileges, and a September 1, 1992 adjudication of refusing to obey for which his sanction was a suspended loss of recreational privileges. On August 13, 1997, he was found guilty of possession of drugs and narcotic paraphernalia, with a sanction of detention, recreational segregation, loss of commutation time and urine monitoring.
As noted, the State filed its SVPA petition on June 4, 2002. Supporting the petition were two clinical certificates.
The first, by Herbert Kaldany, D.O., a psychiatrist employed by CFG Correctional Medical Services, indicated that he interviewed E.S.T. for forty minutes on June 3, 2002, and reviewed his prison classification record, which included mental health and medical records. He noted that an ADTC report was"not included." (As we have noted, there apparently was no ADTC evaluation). Dr. Kaldany stated that E.S.T. had been referred for sex offender treatment"by various sources from 1988 to 2000." However, the basis for that observation was not set forth. At the interview, E.S.T. denied committing the offenses in question, claiming that the victims concocted their charges, apparently at the instigation of the Camden Police because of racial bias. Dr. Kaldany took account of several psychological risk assessment test results that placed E.S.T. in the"moderate to high risk relapse rate." The primary final diagnosis was"Paraphilia*fn2 NOS [not otherwise specified] non-consent type, Polysubstance abuse," with a secondary diagnosis of"Personality [disorder] NOS Antisocial traits most prominent." The doctor checked off the box indicating that defendant qualified for SVPA commitment because he suffers from a"mental abnormality (as defined by the Act) or personality disorder that makes the person likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment."
The second certificate supporting the commitment petition was by Benjamin L. Libertore, M.D., a psychiatrist with the Center for Family Guidance/CMS. Dr. Libertore examined E.S.T. on June 3, 2002, for an hour just preceding Dr. Kaldany's interview. He also reviewed E.S.T.'s records, including"psychological evaluations." He stated the following:
[E.S.T.] has received no sex offender specific therapy, substance abuse treatment, or psychiatric treatment.
Treatment for sex offender and substance abuse recommended by parole board 12/00. In addition there were various recommendations for group counseling and substance abuse treatment by classification committees and others. [E.S.T.] did not pursue these.
As he had with Kaldany, E.S.T. claimed that his convictions resulted from an elaborate conspiracy involving the prosecutors and victims. He demonstrated, according to Libertore,"distorted thinking and denial." Libertore also noted his test scores demonstrating a high (on one test) and moderate (on another test) recidivism risk. His primary diagnosis was ...