May 31, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF S.C.K., SVP-219-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-219-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2007
Before Judges Axelrad and R. B. Coleman.
S.C.K. appeals from a judgment entered on December 18, 2006, finding that he is a sexually violent predator in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment ordered that S.C.K. be committed to the Special Treatment Unit (STU) for care, custody and treatment of sexually violent predators and that a review hearing be conducted on December 5, 2007. We affirm.
S.C.K., a fifty-five year old man, has a long history of sexually violent crimes. On July 8, 1981, he was found guilty of two counts of aggravated sexual assault and one count of burglary. He was sentenced to fifteen years on each of the aggravated sexual assault charges and five years on the burglary charge. In 1982, S.C.K. pled guilty to one count of sexual assault, after he and an accomplice held down a fellow inmate at the Monmouth County Correctional Institution and forced the inmate to take S.C.K.'s penis into his mouth. The predicate offense was S.C.K.'s conviction of aggravated sexual assault on a ten year old girl in 1987. S.C.K. was sentenced to twenty years in prison, with ten years of parole ineligibility.
On or about December 25, 2001, the State filed a petition seeking S.C.K.'s involuntary civil commitment, pursuant to the SVPA. After reviewing the State's petition, the court found probable cause to believe that S.C.K. was a sexually violent predator and issued a temporary commitment order authorizing his transfer to the STU pending a final hearing. S.C.K. was temporarily committed to the STU on December 19, 2001. A final hearing was held on January 10, 2002, where the court found that the State's evidence established that S.C.K. was a sexually violent predator and, as a result, the court ordered that he be remanded to the STU. Subsequent review hearings were held on July 9, 2002, January 14, 2003, January 12, 2004, December 12, 2005, and December 18, 2006. S.C.K. appeals from the December 18, 2006 order wherein the court found that S.C.K. continued to be a sexually violent predator, ordered that he remain confined to the STU, and scheduled S.C.K.'s next review hearing for December 5, 2007.
On this appeal, S.C.K. argues the Attorney General failed to prove all elements required by the SVPA by clear and convincing evidence, and the judge allowed hearsay into the record for its truth, when it should have been excluded. We have carefully considered these arguments in light of the record and applicable law; and we reject S.C.K.'s argument and affirm.
In reviewing a judgment for commitment under the SVPA, "[t]he scope of appellate review . . . [is] extremely narrow," and the trial court's decision should be "accorded '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) (quoting State v. Fields, 77 N.J. 282, 311 (1978)); 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 canvass the . . . expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing Fields, supra, 77 N.J. at 311).
At the December 18, 2006 hearing, the State presented the testimony of Dr. Howard Gilman, a psychiatrist who had examined S.C.K. S.C.K. refused to meet with Dr. Gilman prior to the review hearing. Thus, Dr. Gilman's report and testimony were based on his previous evaluation and report, as well as S.C.K.'s case history and treatment record. Dr. Gilman testified that S.C.K. suffers from a paraphilia not otherwise specified, as well as anti-social personality disorder. Although Dr. Gilman acknowledged that it is impossible to predict recidivism with one-hundred percent accuracy, he opined, based on S.C.K.'s behavior at STU, limited understanding of arousal reconditioning and minimal progress with victim empathy, that S.C.K. had a high risk of reoffending. At the hearing, S.C.K. consented to the admission of the Treatment Progress Review Committee (TPRC) report authored by Dr. Brian M. Friedman, a psychiatrist who serves as a member of the Committee. In his report, Dr. Friedman diagnosed S.C.K. with paraphilia not otherwise specified and anti-social personality disorder. The findings and diagnosis of Dr. Gilman and Dr. Friedman were not contradicted.
We are satisfied from our review of the record that the judge's decision to continue S.C.K.'s commitment is supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471 (1999). S.C.K. has a history of sexual offenses and was convicted in the predicate matter of aggravated sexual assault of a ten year old girl. The judge found that S.C.K.'s treatment had made little progress over the past year. The judge noted that S.C.K. tends to romanticize his offenses and denies altogether the offense against the male victim in prison, an offense to which he entered a guilty plea.
Dr. Gilman's testimony provided clear and convincing evidence that S.C.K. suffers from a mental condition that predisposes him to commit acts of sexual violence. Furthermore, Dr. Gilman's opinion, accepted by the court, was that S.C.K. is at a high risk for reoffending if he is not committed. S.C.K. contends that Dr. Gilman's testimony does not meet the standard of In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002). However, as the Court explained in W.Z., a precise formulation of the risk may be elusive:
To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. Pursuant to our holding today, the State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
Those findings incorporate a temporal sense that will require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior. [W.Z., supra, 173 N.J. at 132-33.]
Judge Serena Perretti properly concluded that "[t]he level of risk is a legal issue for the Court based upon the testimony and with attention given to the advice and opinion of professional witnesses[.]" She found, and we agree, that there is ample credible evidence that supported that S.C.K. is at a high risk for reoffending. Such evidence includes his static score, his anti-social personality disorder and significant findings for psychopathy, minimal improvement in sex offender specific treatment, sexual reoffense after incarceration and sexual activity and MAP status while at STU.
We are also satisfied that Judge Perretti properly permitted the State's testifying expert to utilize TPRC reports, treatment notes, and the clinical certificates supporting the petition. The use of hearsay as a basis for expert testimony and the judge's evaluation of expert credibility is permissible. In re Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). Generally, "[t]he reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth[.]" A.X.D., supra, 370 N.J. Super. at 202.
An expert who relies in part or even substantially "on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information was of a 'type reasonably relied upon by experts in the particular field in forming opinions . . . upon the subject.'" In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div.) (quoting N.J.R.E. 703), certif. denied, 179 N.J. 312 (2004)); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div.), aff'd, 177 N.J. 229 (2003). Here, the State's expert offered his own opinions based on a detailed examination of S.C.K.'s TPRC reports, treatment notes, the clinical certificates supporting the petition, and prior interviews with S.C.K. These reports were properly utilized by the testifying experts and were properly admitted.
In sum, we find no error in the court's evidentiary rulings which are entitled to deference absent a showing of an abuse of discretion, "i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). We are satisfied that the substantial competent credible evidence supports the court's findings.
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