November 16, 2006
IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.T., SVP 385-04
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 385-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 31, 2006
Before Judges Axelrad and Gilroy.
Appellant C.R.T. appeals from a judgment entered on April 27, 2005, following an initial hearing, which determined him to be a Sexually Violent Predator in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committed him to the State of New Jersey Special Treatment Unit (STU), with a review to occur in one year.
Fifty-three year old C.R.T. has engaged in sexual offenses against young girls for over fifteen years, with three separate convictions in 1984, 1989, and 1998. On December 11, 1984, C.R.T. was arrested and charged with second-degree aggravated sexual assault for molesting and impregnating his fifteen-year-old daughter.*fn1 He pled guilty on November 22, 1985, and received a seven-year custodial term with a five-year period of parole ineligibility.
On August 19, 1989, C.R.T. was arrested on charges of aggravated sexual assault for digitally penetrating the seven-year-old daughter of his girlfriend. The victim suffered a tear in her hymenal tissue and a laceration in the vaginal canal near the cervix, causing noticeable vaginal bleeding. C.R.T. admitted touching the victim's vagina, but alleged she had asked him for assistance in applying vaginal ointment because she had a rash. He claimed he did not initially intend that the contact would be sexual, but he later became aroused. On November 9, 1990, he was convicted by a jury of second-degree sexual assault, and on July 12, 1991 he was sentenced to a four-year custodial term.
On June 25, 1998, C.R.T. was arrested and charged with three counts of second-degree sexual assault and three counts of endangering the welfare of a child. He was accused of digitally penetrating the seven-year-old daughter of his girlfriend and an eight-year-old girl, C.D., and fondling the buttocks of a ten-year-old girl. Pursuant to a guilty plea of second-degree sexual assault of C.D., on June 15, 2001 C.R.T. was sentenced to a custodial term of eight-and-a-half-years with a five-year period of parole ineligibility. C.R.T. refused to participate in the State's Sex Offender Treatment Program at Avenel. During interviews with the State's and his psychologist in connection with the civil commitment proceedings, C.R.T. denied digitally penetrating either of these victims, but admitted to fondling them on more than one occasion.
The civil commitment proceeding was initiated in December 2004, when C.R.T. was about to be released from prison for this predicate offense. At the commitment hearing, Dr. Natalie Barone, a psychologist, and Dr. Stanley K. Kern, a psychiatrist, testified for the State, and Dr. Barry Katz, a psychologist, testified as C.R.T.'s expert. Judge Philip Freedman credited Dr. Barone's diagnosis of Pedophilia based on C.R.T.'s three separate sexually violent offenses against children and concluded that C.R.T.'s action was part of a larger compulsive or repetitive pattern of deviant sexual behavior with underage children. He further credited Dr. Barone's diagnosis of Personality Disorder NOS with anti-social traits because of C.R.T.'s lengthy history of criminal behavior, his fathering of five or six children by three different women with no contact with most of them, and his self-centered and hedonistic behavior. The judge was also concerned with C.R.T.'s continued use of substances despite some treatment in prison for substance abuse, and with C.R.T.'s inability to control his pedophiliac behavior and continuing sexual offending despite two periods of incarceration. Judge Freedman further found that C.R.T.'s completed treatment courses while in prison were minimal and insufficient to provide him the relapse prevention skills necessary to avoid re-offending, which are essential for Pedophilia. The judge also rejected C.R.T.'s assertion that he no longer had any sexual arousal to children, particularly in view of his inconsistent comments to his own expert and Dr. Barone.
After considering the testimony and evidence Judge Freedman found, based on clear and convincing evidence, that if C.R.T. were released, he would "have a substantial inability to control his behavior and would be highly likely, even with the conditions if he were given them, to engage in acts of sexual violence within the reasonably foreseeable future." He found Dr. Katz's opinion to be much too optimistic with regard to C.R.T.'s ability to control himself, in view of the record presented. The court concluded that C.R.T.'s lack of treatment in both sex-offender specific and alcohol and drugs "would make it impossible for him to control himself" and, accordingly, with C.R.T.'s high propensity to re-offend, his current release would have serious repercussions to potential victims.
C.R.T. asserts the following arguments on appeal:
THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN THE TESTIMONY OF THE EXPERT WITNESSES AND THEIR REPORTS IN REACHING ITS DECISION.
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE AT THE REVIEW HEARING THAT C.R.T. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.
We are not persuaded by these arguments and affirm substantially for the reasons articulated by Judge Freedman in his oral opinion following the plenary hearing on April 27, 2005. We add the following comments.
The SVPA authorizes involuntary commitment of a sexually violent predator, defined as a person who has been convicted . . . of a sexually violent offense . . . and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secured facility for control, care and treatment. [N.J.S.A. 30:4-27.26]
An order for a commitment under the SVPA must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will re-offend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see also In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).
In reviewing a judgment for a commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311, (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
We are satisfied the order of commitment is adequately supported by the record and consistent with the controlling legal principals outlined above. Moreover, we are satisfied the hearsay evidence relied upon by the experts complies with N.J.R.E. 703 and the case law. We have previously recognized that documents containing inadmissible hearsay that expert witnesses have relied upon in forming their opinions may be admitted into evidence at a commitment hearing under the SVPA for the limited purpose of allowing the court to consider the factual materials considered by those witnesses. See, e.g., In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 484-89 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The record does not support C.R.T.'s claim of procedural infirmities by the experts' or court's references to hearsay documents or information, or that the opinions of the non-testifying experts were "bootstrapped into evidence through the testimony of the testifying experts." In re Commitment of E.S.T., supra, 371 N.J. Super. at 575.