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In re Civil Commitment of J.A.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 6, 2007

IN THE MATTER OF THE CIVIL COMMITMENT OF J.A.D., SVP-340-03

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, SVP-340-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: November 14, 2006

Before Judges Kestin and Lihotz.

J.A.D. appeals from an initial order of commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA or the Act. The trial court found him to be a sexually violent predator as defined by the Act and committed him to the Special Treatment Unit (STU). J.A.D. raises the following issues:

POINT I

THE TERMS AND IMPLEMENTATION OF NEW JERSEY'S SVPA DENIED APPELLANT'S RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS, AS WELL AS CONFRONTATION (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, PAR. 1)

A) THE ABSENCE OF THE RIGHT TO TRIAL BY JURY AND BURDEN OF PROOF BEYOND A REASONABLE DOUBT IN OUR SVPA CANNOT WITHSTAND CONSTITUTIONAL SCRUTINY DUE TO THE STATUTE'S CONTENTS AND IMPLEMENTATION. (NOT RAISED BELOW)

B) THE HEARING COURT'S FAILURE TO REQUIRE COMPLIANCE WITH THE STATUTORY REQUIREMENTS OF A PRIMA FACIE CASE CONSTITUTED AN IMPERMISSIBLE DENIAL OF DUE PROCESS. (NOT RAISED BELOW)

C) APPELLANT'S COMMITMENT DID NOT COMPLY WITH THE REQUIREMENTS OF KANSAS v. CRANE AND WAS NOT BASED ON CLEAR AND CONVINCING EVIDENCE. (NOT RAISED BELOW)

D) THE HEARING COURT ERRED IN PERMITTING INADMISSIBLE HEARSAY INTO EVIDENCE AND RELYING ON IT IN REACHING ITS DECISION U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. 1, PAR. 1. (NOT RAISED BELOW)

1. THE ADMISSION INTO EVIDENCE OF A POLICE REPORTS PRE-SENTENCE REPORTS [SIC] AND PSYCHIATRIC/PSYCHOLOGICAL REPORTS CONTAINING PRIMARY AND/OR DERIVATIVE TESTIMONIAL HEARSAY VIOLATED APPELLANT'S RIGHTS TO CONFRONTATION AND/OR DUE PROCESS BECAUSE THE AUTHORS/ORATORS OF THE STATEMENTS THEREIN WERE NOT SUBJECTED TO CROSS-EXAMINATION.

2. THE ADMISSION INTO EVIDENCE OF AN ARREST REPORT, VICTIM AND WITNESS STATEMENTS, PRE-SENTENCE REPORTS AND PSYCHIATRIC/PSYCHOLOGICAL EVALUATIONS BASED ON THE STATE'S EXPERTS' USE THEREOF WAS ERROR AS SUCH EVIDENCE IS NOT PERMITTED UNDER THE BUSINESS RECORD EXCEPTION TO THE RULE THAT HEARSAY IS INADMISSIBLE AND THE ADMISSION WAS NOT LIMITED AS IS REQUIRED FOR ADMISSION UNDER N.J.R.E. § 703.

Our analysis of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that an affirmance is in order.

The due process and standard of proof defects asserted by J.A.D. were fully addressed in In re Commitment of W.Z., 173 N.J. 109 (2002), and In re Civil Commitment of J.H.M., 367 N.J. Super. 599 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); see also In re Civil Commitment of G.G.N., 372 N.J. Super. 42 (App. Div. 2004); In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004). We see no good purpose to be served in retreading that ground.

The trial court's decision was reached, in part, on the basis of documentary evidence in J.A.D.'s file, including data relating to the existence of the predicate crime and other conduct, and his record at the Adult Diagnostic and Treatment Center (ADTC), where he served his sentence. The court also gave due regard to the testimony from mental health professionals who evaluated J.A.D. and opined as to his mental status. Dr. Michael R. McAllister, a forensic psychiatrist on the STU staff, and Dr. Roger Harris, a psychiatrist on the ADTC staff, testified on behalf of the State. The testimony of Dr. Gerald Cooke, a privately practicing psychologist, and Dr. Robert S. Carlson, a psychologist on the STU staff, was presented on behalf of J.A.D.

The judge evaluated the testimony given and the reports introduced and, on the basis of the evidence before the court, including credibility determinations the judge made, found that the State had proved by clear and convincing evidence that J.A.D. "is a sexually violent predator suffering from abnormal mental condition and personality disorders that influence his cognitive, emotional and volitional capacities in such a way as to predispose him to commit sexual[ly] violent acts." The court also found "that he has great difficulty controlling his sex-offending behavior. This difficulty is compounded by the combination of his diagnoses, the paraphilia, the impulse control disorder, and not least the substance abuse, if not substance dependence." Based on all of these factors, the court made an ultimate finding "that it is highly likely [J.A.D.] will re-offend if not confined[.]" Accordingly, the court entered a judgment of commitment providing for review in one year.

Taking the arguments advanced as contending, inter alia, that the trial court's determination was not adequately supported, i.e., by clear and convincing evidence, we note the limited scope of our review. See In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We will interfere with a commitment determination only where the record reveals a clear misapplication of discretion. See In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006); V.A., supra, 357 N.J. Super. at 63; In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). We discern no such flaw in the disposition before us. The evidence, taken as a whole, provides ample support for the conclusion reached.

The argument made, based on In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), concerning the assertedly improper use by the trial court of hearsay in reaching its decision, is without merit. In E.S.T., we were concerned with a testifying expert's reliance on the opinions of other, non-testifying experts. Id. at 571-74. We discern no such flaw in this case. The references by the experts and the trial court itself, which the argument addresses, were not to the opinions of non-testifying experts, but rather to case-history-type documents that were part of J.A.D.'s institutional record and furnished undeniable factual background providing some of the basis for the opinions offered by the experts and the findings made by the court.

The judgment of commitment is affirmed.

20070706

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