On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-306-03.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION May 16, 2005
Submitted February 7, 2005
Before Judges A. A. Rodríguez, Cuff and Weissbard.
A.E.F. appeals from a June 19, 2003 order finding that he is a sexually violent predator in need of involuntary civil commitment and ordering that he be committed to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-24.27 to -27.38. This appeal requires us to further refine the standards for the use of hearsay in SVPA Commitment hearings which we addressed in In re Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004). Having done so, we affirm A.E.F.'s commitment.
In support of his appeal, A.E.F. presents the following arguments for our consideration:
THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. ZEIGUER AND BARONE BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below).
THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL.
THE COURT ERRED IN BASING ITS DECISION IN PART UPON ALLEGATIONS RELATED TO A.E.F.'S CRIMINAL CONDUCT THAT WERE NEVER ADMITTED BY A.E.F. (Not Raised Below).
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.E.F. WAS SUBJECT TO SVP COMMITMENT.
A resolution of these issues requires a detailed statement of the factual and procedural history leading to the order under review.
We begin with A.E.F.'s criminal history, as it relates to offenses that are alleged to be sexually related.*fn1 On July 11, 1972, when he was twenty-two years old, A.E.F. pled guilty to making obscene phone calls to an ex-girlfriend and was sentenced to thirty days in jail, a fine, and one year probation. On August 17, 1973, a sixteen-year-old girl claimed that she had been raped by A.E.F. In a statement given to the police, A.E.F. stated that the sexual encounter was consensual. Upon further investigation, police came to question the veracity of the victim's account. In addition, the victim became uncooperative. As a result, the rape charge was never pressed. Rather, on January 25, 1974, A.E.F. pled guilty to contributing to the delinquency of a minor and was sentenced to a suspended indeterminate term at the Youth Correction facility, a fine and two years probation.*fn2
On November 4, 1974, A.E.F. was arrested for contributing to the delinquency of a minor resulting from a report by a seventeen-year-old girl that he had attempted to sexually assault her after they, along with another male friend, had watched a pornographic movie. The friend claimed that he had to fire a shotgun to dissuade A.E.F. from the assault. A.E.F. denied any assaultive behavior and provided a full statement to the police in which he described an entirely voluntary encounter. On April 7, 1976, A.E.F. pled guilty to the delinquency charge and imposition of sentence was suspended.
On June 9, 1979, A.E.F. was arrested for having abducted and sexually assaulted a woman at gunpoint. Despite contending that he was innocent, on September 27, 1979, A.E.F. pled guilty to assault with intent to commit rape while armed and, on April 20, 1980, was sentenced to four to seven years in State Prison. He was paroled on April 21, 1981. One week after his parole, on April 28, 1981, A.E.F., then thirty-one years old, allegedly entered the home of a fifty-one-year old woman and assaulted her with a screwdriver while she was in her bed. The woman claimed that A.E.F. moved the weapon around her body, "moaning" as if he were engaged in sexual intercourse. The victim managed to escape and A.E.F. was not arrested until September 8, 1981. In the interim, A.E.F. was again arrested, on August 4, 1981. He allegedly broke into the home of a thirty-one-year-old woman, threatened her with a knife, tied her up with electrical tape, and forced her to masturbate him. A.E.F. was indicted on multiple charges arising from this incident but eventually, after his trial and conviction for the April 1981 offenses, the charges were dismissed due to the victim's unwillingness to proceed.
A.E.F. denied that he committed the April 1981 offense, but was convicted by a jury and on March 26, 1982, was sentenced to seven years for burglary and a consecutive four-year term for aggravated assault, with five and one-half years of parole ineligibility. A.E.F. was confined at Leesburg State Prison. While there, he apparently made significant progress in psychotherapy according to a report by the Director of Professional Services at Leesburg. As a result, on October 28, 1986, the trial judge granted his motion for a change of custodial sentence to permit his entry into a residential drug abuse rehabilitation program run by the Veterans Administration (V.A.). See R. 3:21-10(b)(1). On November 10, 1986, A.E.F.'s sentence was modified to five years probation conditioned on entry into the V.A. program.
Finally, on February 26, 1988, about sixteen months after his commitment to the V.A. program, A.E.F. assaulted a fifteen-year-old girl and her seventeen-year-old brother after entering their house, pretending that he was collecting money for newspaper delivery. The boy then fled to a neighbor's home, after A.E.F. hit him in the head. He then assaulted the girl, pulling her pants down and ripping her brassiere while attempting to touch her breasts. The girl struck A.E.F. with a phone and he managed to flee the house, eluding the brother who, along with a neighbor, had returned to rescue his sister.
A.E.F. was arrested on February 29, 1988. On November 2, 1989, A.E.F. was convicted by a jury of burglary, aggravated criminal sexual contact, aggravated sexual assault, criminal sexual contact, and resisting arrest. On July 27, 1990, he was sentenced to an aggregate term of twenty-one and one-half years in prison with five years parole ineligibility. Because A.E.F. had been on probation when he committed the February 26, 1988 offense, he was sentenced on April 19, 1991 for violation of probation to eleven years with five and one-half years parole ineligibility, the same term originally imposed for the April 28, 1981 offenses. That term was ordered to be consecutive to the July 27, 1990 sentence. A.E.F. appealed and we affirmed his conviction on March 23, 1993, but remanded for an award of appropriate gap time.
On March 7, 2003, shortly before A.E.F. was to "max out" on his sentence, the State filed a petition for involuntary commitment under the SVPA. The petition was supported by clinical certificates of Donald R. Reeves, Jr., M.D. and Vasudev N. Makhija, M.D., both psychiatrists employed by Central Medical Services ...