June 22, 2007
IN THE MATTER OF CIVIL COMMITMENT OF D.D. (SVP-388-05).
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-388-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Lefelt and Parrillo.
D.D. appeals from a May 18, 2005 order committing him to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34a. We affirm substantially for the reasons stated by Judge Perretti in her oral opinion of May 18, 2005.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for custody, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32c(2).*fn1
Initial orders, as well as orders of continued 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 W.Z., supra, 173 N.J. at 132; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004) writ of hab. corp. denied sub. nom. Fournier v. Brown, 2005 U.S. Dist. Lexis 43577 (D.N.J.); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002), rev'd o.g., 183 N.J. 536 (2005); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 132-33; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Governed by this standard, we are satisfied that the record shows no such abuse with respect to the order under review. This order of initial commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).
By way of background, on January 29, 1996, D.D. pled guilty to the index sexual offense of first-degree aggravated sexual assault upon T.Q., his 15-year old stepdaughter who complained that D.D. had been sexually assaulting her for three years. He was sentenced to fifteen years at the Adult Diagnostic and Treatment Center (ADTC), with five years of parole ineligibility. This followed an earlier conviction for aggravated sexual assault upon five-year old, P.Q., D.D.'s other stepdaughter and sister of T.Q., for which he had received a twelve-year sentence at ADTC. According to his written statement to police at the time, D.D. vaginally penetrated P.Q., after which he pushed a ratchet into her vagina, causing the child severe injuries. Prior to these sexual assaults, D.D. had a history of sex offenses beginning at age fifteen when he was charged with, among other things, sodomy upon a six or seven-year old boy, for which he received an indeterminate term at Jamesburg.
At D.D.'s initial commitment hearing, the State produced four experts, all of whom had interviewed D.D. save for Dr. Luis Zeiguer, whom D.D. refused to submit to an interview. Nevertheless, based on his archival review, Dr. Zeiguer diagnosed D.D. with severe pedophilia; paraphilia NOS; antisocial personality disorder and alcoholism. According to Dr. Zeiguer, the combination of pedophilia and personality disorder elevate D.D.'s risk to re-offend and render him highly dangerous. D.D.'s personality disorder is both severe and a life-long condition with early onset. In addition, D.D. is manipulative and cunning, for whom treatment has not been successful. In fact, his denial of raping P.Q., according to Dr. Zeiguer, nullifies whatever progress he may have made in all the years of sex offender treatment at ADTC.
Dr. Robert Carlson confirmed Zeiguer's diagnosis of pedophilia; paraphilia NOS; personality disorder; and alcohol abuse. Dr. Carlson noted some deficits in D.D.'s treatment progress and that these deficits were demonstrated psychometrically by the Bumby scale where D.D. endorsed a number of cognitive distortions. In fact, despite D.D.'s long history of treatment, he has repeatedly re-offended. After six years in intense treatment at the ADTC and approximately two years of out-patient therapy, and after cessation of parole supervision, D.D. terminated treatment and commenced the sexual assault of his other stepdaughter. Dr. Carlson concluded that D.D.'s risk to sexually re-offend is high at this time because he has a history of re-offending despite having undergone significant treatment.
Dr. Corey Feiner-Escoto is a psychologist employed at the ADTC where she was D.D.'s primary case manager for approximately one year. She prepared a termination report summarizing D.D.'s treatment progress. Dr. Feiner-Escoto concluded that while in therapy, D.D. did not demonstrate sufficient knowledge of his offending. She further explained that D.D. minimized his crimes and the harm that he had inflicted on his victims, particularly P.Q., whom he denied raping. In addition, D.D. did not demonstrate a knowledge of relapse prevention skills. According to Dr. Feiner-Escoto, the Mn-SOST-R indicated that D.D. was in the moderate to high risk range for re-offense, and the STATIC-99 identified him as a high risk to re-offend.
Finally, Dr. Harris testified based in part on his three interviews of D.D., two of which were in connection with preparing a termination report and the third for the clinical certificate. Dr. Harris also confirmed Dr. Zeiguer's diagnosis of pedophilia; paraphilia NOS; and alcohol dependence. According to Dr. Harris, D.D.'s early onset of sexual offending signifies that his deviant arousal was not only strong, but remarkable because of its variation in terms of age groups and sexes. Dr. Harris found that it is also remarkable that D.D. continues to re-offend despite the many sanctions imposed on him. Also, despite his fifteen years of sex offender treatment, D.D. has not been able to acknowledge the most basic characteristics of his sexual offenses. Dr. Harris found D.D.'s risk to sexually re-offend very high, an opinion confirmed by D.D.'s score of seven on the STATIC-99, which is in the high- risk category. Dr. Harris also criticized D.D.'s release plan, which entailed D.D.'s return to his wife, who is the mother of both children he sexually offended against, and an enabler.
Based on this evidence, Judge Perretti concluded:
This court is clearly convinced that D.D. is a sexually violent predator suffering from abnormal mental conditions and personality disorders that adversely affect his cognitive volitional and emotional 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 it is highly likely that he will recidivate if not confined for further care and treatment. This is an exceedingly dangerous person to those near him, dangerous to the public, and further treatment is required.
This appeal follows, in which D.D. raises the following issues:
I. THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN THE TESTIMONY OF THE EXPERT WITNESSES AND THEIR REPORTS IN REACHING ITS DECISION.
II. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDNECE AT THE REVIEW HEARING THAT D.D. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.
III. DEFENDANT WAS DENIED DUE PROCESS BECAUSE DR. HARRIS, WHO DID A CERTIFICATION, HAD PREVIOUSLY DONE A TERMINATION REPORT RECOMMENDING COMMITMENT.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). Suffice it to say, the record amply supports, by competent, clear and convincing evidence, Judge Perretti's determination that D.D. suffers from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend. W.Z., supra, 173 N.J. at 132. See also State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); In re the Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004); N.J.R.E. 703.
Moreover, we reject as equally unsound D.D.'s final argument that he was denied due process because Dr. Harris, who had prepared the ADTC termination report recommending civil commitment, also prepared the clinical certification for SVP civil commitment. We know of no statutory or constitutional proscription against Dr. Harris preparing a clinical certificate establishing probable cause simply because he also authored the ADTC's termination report. In any event, both reports were generated after clinical interview and D.D. had a full opportunity to cross-examine Dr. Harris as to any bias in authoring the clinical certificate at the initial commitment hearing. Since D.D. had a full opportunity to cross-examine Dr. Harris on both reports, he was accorded all the process due. Furthermore, the other three experts who testified on behalf of the State testified to opinions that they formulated independently, so that any error in the admission of Dr. Harris' testimony would have been harmless.