April 16, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF S.B.M., SVP-308-03.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Doc. No. SVP-308-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 12, 2007
Before Judges Lintner and King.
This is an appeal from the trial judge's annual review of S.B.M.'s involuntary civil commitment, pursuant to the New Jersey Sexual Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. S.B.M. asserts generally that the SVPA is unconstitutional, the State failed to produce an appropriate expert witness, and the trial judge abused her discretion in continuing S.B.M.'s commitment and in her evidentiary rulings. Specifically, in his brief S.B.M. raises these five points for reversal:
POINT ONE - S.B.M.'S INITIAL INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) (not raised below).
POINT TWO - S.B.M.'S INITIAL INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE I, PARAGRAPH 1 (EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES) (not raised below).
POINT THREE - THE STATE FAILED TO SATISFY THE STATUTORY REQUIREMENTS FOR COMMITMENT WHEN IT DID NOT PRODUCE A PSYCHIATRIST WHO WAS A MEMBER OF S.B.M.'S TREATMENT TEAM FOR THE HEARING (not raised below).
POINT FOUR - THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS INITIAL DECISION TO INVOLUNTARILY COMMIT S.B.M. AND IN REACHING ITS DECISION TO CONTINUE S.B.M.'S INVOLUNTARY COMMITMENT AT THE REVIEW HEARING (not raised below).
POINT FIVE - THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT S.B.M. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.
A. Standard of Review.
B. At the Review Hearing, the State failed to prove S.B.M. suffered from a mental abnormality that caused him to be predisposed to commit acts of sexual violence.
C. The State failed to prove the lack of control requirement of W.Z.
We conclude that S.B.M.'s appeal is without merit, not requiring extensive legal discussion. R. 2:11-3(e)(1)(A) and (E). We affirm for the reasons stated in Judge Perretti's opinion of August 1, 2005.
This is the factual and procedural background. S.B.M., born November 20, 1961, has a long history of criminal behavior and sexual violence. On November 12, 1986, he was sentenced in the New York Supreme Court to one year and eight months in prison for attempted rape, assault and criminal possession of weapons. According to records, S.B.M. stabbed S.K. after meeting her in a bar and convincing her to give him a ride home by claiming that he had just been mugged. He was paroled on September 8, 1988; this parole was revoked on June 9, 1989. On October 18, 1988, S.B.M. was arrested for rape but the matter was No Billed.
The next incident of sexual violence occurred on or about January 7, 1993, when S.B.M. was arrested for aggravated sexual assault, unlawful possession of a weapon and possession of a weapon for unlawful purposes. He served 548 days in jail.
According to the Monmouth County Police Report, S.B.M. orally, vaginally, and anally raped a woman at knifepoint. On May 5, 1997, S.B.M. pled guilty to aggravated sexual assault and possession of cocaine and was sentenced to ten years at the Adult Diagnostic and Treatment Center (ADTC) without parole. This stemmed from an incident where S.B.M. abducted a woman and took her to an abandoned house where he vaginally raped her at knifepoint on April 12, 1996.
On March 13, 2003, shortly before the end of S.B.M.'s prison term, the State filed a petition seeking the involuntary commitment under the SVPA. On March 20, 2003, an order was issued temporarily committing S.B.M. to the New Jersey Special Treatment Unit (STU), a secure facility designated for the custody, care and treatment of sexually violent predators.
On April 10, 2003, an order was issued after an initial hearing permanently committing S.B.M. to the STU. Review hearings were held on March 29, 2004, and August 1, 2005, where the same result was reached each time.*fn1 S.B.M. appeals from the August 1, 2005, decision.
The events of this hearing are as follows. Dr. Arnaldo Apolito, a psychiatrist, reviewed S.B.M.'s records, but did not interview him. In March 2005, Apolito attempted to interview S.B.M., but was frustrated because S.B.M. declined to be involved in the interview and instead looked at Apolito and made a slashing gesture across his neck. On July 18, 2005, S.B.M. again declined to be interviewed by walking away when Apolito introduced himself. As a result, Apolito based his evaluation of S.B.M. on interviews by previous examiners, clinical notes of treatment, and psychological and actuarial instruments administered by other examiners.
Dr. Apolito's diagnosis is paraphilia, rape, sexual sadomasochism, and antisocial personality disorder with psychopathic features. This diagnosis was based, in part, on S.B.M.'s sexual offending history, and self-admitted history. There was also concern that S.B.M. fantasized about committing murders and was predisposed to sexually re-offend. S.B.M. was initially hostile and resistant to treatment but later changed to become an active participant. However, his negative behavior then resumed with passive or hostile behavior and resistance in the group. The doctor did not believe that treatment had reduced the risk of S.B.M. re-offending and that he was at high risk to sexually re-offend unless confined for treatment for the foreseeable future. He also testified that, had S.B.M. lied about his self-reports of juvenile offenses, his prognosis regarding S.B.M's risk to sexually re-offend would not change.
Dr. Eleni Marcantonis was a member of the Treatment Progress Review Committee (TPRC) that evaluated S.B.M. The TPRC adopted a report created by Dr. Caputo who was no longer with the STU. Since S.B.M. refused to be interviewed, the TPRC did not conduct a personal evaluation but, rather, reviewed the available records customarily relied upon in the profession. Marcantonis testified to reports of S.B.M.'s variable participation in group therapy, his refusal to discuss his prior sex offenses, and his lack of remorse or empathy. She said that S.B.M. was in phase two of treatment where the resident should become "internally motivated to change a lot of his thoughts, behaviors and attitudes that have gotten him into trouble in the past . . . [and] understand that they need to start to change some of these things so that they don't re-offend in the future." S.B.M. has made minimal progress but has kept out of trouble in the institution. He completed anger management, but needs to repeat it, a relapse prevention, introduction to substance abuse and treatment orientation, but did not pass assertive communication or the trauma group. He appears angry about his commitment to the STU and is defensive and resistant to the treatment progress. He has not advanced to understanding the offense cycle or any of the components of his act of rape. Judge Perretti found that S.B.M. "has a pattern of refusing to interview with State's experts." She also noted that S.B.M. was inconsistent when describing his prior offenses and juvenile history, but there is ample evidence to support the conclusion that there was a juvenile conduct disorder. She reviewed the treatment notes and the progress and setbacks S.B.M. had undergone. Finally, the judge ruled:
There is no doubt in my mind that [S.B.M.] has made no progress whatever in treatment here. He continues to be hostile, resistant, disruptive, and angry. Repeated efforts have been made by assigning him to a variety of modules to give him the conceptual skills that would enable him to progress in his process group but [S.B.M.] does not choose to do that, refusing even to do any written homework.
There is ample evidence in this record to support the conclusion of Dr. Apolito that [S.B.M] has not progressed sufficiently in therapy to mitigate the high risk which he presents.
The treatment team says that at times [S.B.M.] will make vague references to violence in the future if "things don't change soon."
He has been angry, hostile and disruptive and does not wish to attend the anger management module.
The Court notes that he needs this desperately.
[T]he Court considers [S.B.M.] as a treatment refuser. However, he continues to go to process group.
The judge found ample evidence to support the psychiatrists' conclusions of S.B.M.'s various psychological disorders and risks to re-offend.
The evidence of the State has been clear and convincing, I am clearly convinced that [S.B.M.] continues to be a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely impact his volitional, emotional and cognitive capacities in such a way as to predispose him to commit sexually violent acts.
I find that he has serious difficulty controlling his sex offending behavior as a result of which I find it is highly likely that he will re-offend if not continued here for further custody.
Upon careful review of this record, we completely agree with Judge Perretti's analysis and conclusion in this matter where she said:
Dr. Apolito gave his diagnosis which is more than adequately based upon the record in this case. His diagnosis beginning at page seven of his report, P-2, is paraphilia for rape, sexual sadomasochism, antisocial personality disorder with psychopathic features.
The paraphilia diagnosis is based on the history of violent sex offending behavior. The diagnosis of sexual sadomasochism is based on [S.B.M.'s] self-reports in the record, the details of sex offending behavior contained in the record, and most recently [S.B.M.] has acknowledged that causing fear in his victims increased his physical arousal, consistent with sexual sadism.
The diagnosis of antisocial personality disorder with psychopathic features is adequately supported, more than adequately supported by [S.B.M.'s] terrible record of a life-long commitment to criminal behavior and a juvenile conduct disorder as he describes it. There is no reason to disbelieve the few statements against interest that [S.B.M.] has made.
Whether or not [S.B.M.] did indeed kill anyone when he was 11 years old while defending his sister is not known and is not relevant or I should say important to my conclusion, nor does it appear to be important to Dr. Apolito's diagnosis or conclusion.
He finds that [S.B.M.] has not reduced the risk because of treatment, he is predisposed to sexually violent offending because of the conditions that diminish his emotional, cognitive and volitional capacities. He has serious difficulties controlling his sex behavior, his deviant sex behavior as has more than been amply established by his conduct in the past, and his risk is viewed as high.
We affirm on the basis of Judge Perretti's oral opinion of August 1, 2005. See In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).