May 29, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF M.X.M. SVP NO. 328-03
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-328-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2007
Before Judges Stern and A. A. Rodríguez.
M.X.M. appeals from a judgment entered on January 6, 2004 committing him "to the State of New Jersey Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators," and ordering a further review hearing on December 14, 2004.*fn1
On this appeal, he argues:
POINT I M.X.M.'S 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 II THE COURT ERRED IN RELYING ON HEARSAY CON-TAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT M.X.M. (Partially raised below).
POINT III THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.X.M. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.
A. Standard of Review
B. The State failed to prove M.X.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. POINT IV THE TRIAL COURT FAILED TO CONSIDER CON-DITIONAL DISCHARGE.
We reject these contentions and affirm the judgment.
Dr. Michael McAllister, a psychiatrist, prepared a written report and testified for the State.*fn2 Dr. McAllister diagnosed defendant as suffering from a mental abnormality or personality disorder, see N.J.S.A. 30:4-27.26, specifically paraphilia NOS, personality disorder NOS, and impulse control disorder, with a history of substance abuse. Among other things, Dr. McAllister thought it significant that M.X.M. committed a sexual offense against his two-and-one-half year old daughter while awaiting sentencing for a similar offense involving his eleven-year-old sister-in-law, and committed another crime while on parole for the first two. The doctor also noted that the age of M.X.M.'s victims indicated that he "had a very wide . . . sexual victim pool," and that his admission to having been a voyeur starting at age thirteen to fourteen reflected "a deviant sexual interest which tends to recur in a stronger form at times of stress as well." Also significant was the denial of "any history of cross-dressing" while admitting "he had used women's panties and bras as masturbatory aids." As a result, Dr. McAllister found that appellant was "deliberately deceptive," "failed to retain the benefit of sexual offender treatment, which he had obtained at the Adult Diagnostic and Treatment Center [(ADTC)] previously" and was "smooth and slick." Dr. McAllister also noted appellant's substance abuse problem, and concluded that appellant "remains at quite significant risk of further sexual offenses."
Dr. Robert Carlson, a psychologist, testified for appellant.*fn3 He also diagnosed a "personality disorder (antisocial and narcissistic features)" and poly-substance dependence, but reported that M.X.M. "may dynamically pose a moderate risk for reoffense while static factors suggest a substantial risk for reoffense." While testifying, Dr. Carlson indicated he considered, but rejected, voyeurism, fetishism, pedophilia and other diagnoses. He concluded that he did not "believe" that M.X.M. was then "pre-dispose[d] . . . to engage in acts of sexual violence." In reaching his conclusion, Dr. Carlson also considered appellant's record, and nature of his offenses, his age, progress in ADTC and religion as having become "a legitimate important part of his life." He felt that M.X.M.'s "significant history of cognitive distortion as documented in the ADTC records appears to have improved significantly."
There was no dispute that appellant committed the requisite offenses. Judge Philip Freeman gave extensive reasons for adopting the opinion of Dr. McAllister and committing appellant to the STU.
The ex post facto issue was not raised in the Law Division. However, as the commitment proceedings have been deemed civil, with a burden of clear and convincing evidence, and the commitment is not "punitive" in nature, we reject the contention. See Kansas v. Hendricks, 521 U.S. 346, 357, 361, 369, 117 S.Ct. 2072, 2079-80, 2085, 138 L.Ed. 2d 501, 512, 514-15, 519-20 (1997); In re Commitment of W.Z., 173 N.J. 109, 125, 130 (2002); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div.), certif. denied, 179 N.J. 312 (2004); In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). See also State v. Bellamy, 178 N.J. 127, 139-40 (2006); Doe v. Poritz, 142 N.J. 1, 40-77 (1995) (rejecting claim under Megan's Law).
The experts, including Dr. McAllister, could rely on prior records and forensic and expert reports in helping to form their opinion, and the judge could consider them in evaluating credibility. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 224 (App. Div. 2007); In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004). As we recently said in In re Civil Commitment of T.J.N.:
[W]hile each case is fact sensitive, we have sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings. See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55-56, (App. Div. 2004) (quoting [J.H.M., supra, 367 N.J. Super. at 612-13)] 367 N.J. Super. 599, 612-13 (with respect to reference to presentence reports); In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) (permitting hearsay contained in presentence reports, ADTC evaluations, and an expert's opinion in affirming a commitment under the SVPA), certif. denied, 183 N.J. 586 (2005); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004) (permitting reference to Special Treatment Unit reports); J.H.M., supra, 367 N.J. Super. at 612-13 ("A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition." Id. at 612.
See also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App. Div.), certif. denied, 185 N.J. 393 (App. Div. 2004); [E.S.T., supra, N.J. Super. at 575-76] (App. Div. 2004); In re Commitment of R.S., 339 N.J. Super. 507, 537-38, 773 A.2d 72 (App. Div. 2001) (permitting use of "actuarial instruments"), aff'd, 173 N.J. 134 (2002). [In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 224-25.]
Based on the evidence admitted and the testimony, Judge Freedman concluded:
I'm satisfied that the State has, in fact, proven what it needs to prove by clear and convincing evidence, in that [M.X.M.] does, in fact, suffer from a mental abnormality in the form of paraphilia NOS and poly-substance abuse and dependence, as well as a personality disorder on Axis 2. That in combination and together and  individually, the paraphilia pre-disposes him to engage in acts of sexual violence facilitated by his personality disorder and his -- his substance problems, and that he would have, in fact, have serious difficulty controlling his behavior if he [was] released today and would, in fact, be a substantial risk, highly likely to do other crim -- sexually violent acts unless he's confined for additional treatment.
In sum, the judge found that the evidence "was clear and convincing and uncontradicted" that M.X.M. "suffers from abnormal mental conditions and personality disorders," and that he was "highly likely . . . [to] commit further sexually violent acts if not confined for further care." See W.Z., supra, 173 N.J. at 132-33.
Our scope of review is "extremely narrow," and we must give the judge's determination the "'utmost deference' [permitting modification] 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). See also e.g., T.J.N., supra, 390 N.J. Super. at 225. The record before us requires that we affirm the order continuing the commitment.
Finally, there was no basis for a conditional discharge at the time of commitment. Id. at 226; In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). We trust that a conditional discharge plan, if appropriately based on subsequent developments, was considered and presented on a subsequent review.