July 9, 2007
IN THE MATTER OF THE COMMITMENT OF A.N.Q., SVP 419-05
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. SVP 419-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 20, 2007
Before Judges Wefing and Weissbard.
A.N.Q. appeals from an order entered May 17, 2006, committing him to the New Jersey Special Treatment Unit ("STU") as a sexually violent predator under the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. Having reviewed the record in light of the contentions advanced on appeal, we affirm.
At the time the Attorney General petitioned for the commitment of A.N.Q. in December 2005, A.N.Q. was coming to the end of his six-year sentence, with a five-year period of parole ineligibility, at the Adult Diagnostic and Treatment Center for his convictions in 2001 for sexual assault, N.J.S.A. 2C:14-2b, and aggravated sexual assault, N.J.S.A. 2C:14-2a(1). In addition to noting the predicate offenses for which A.N.Q. was then incarcerated, the Attorney General's petition noted A.N.Q.'s long history of sexual offenses against young children, dating back to 1979. An order of temporary commitment to the STU was entered on December 27, 2005, and a hearing held on May 17, 2006.
At that hearing, the trial court heard testimony from Stanley Kern, M.D., a psychiatrist. Dr. Kern examined A.N.Q. on two occasions, on January 10, following his admission to the STU and on May 5, in anticipation of the commitment hearing. Dr. Kern examined records relating to A.N.Q.'s criminal history, psychiatric evaluations and treatment records. He noted in his testimony that one of A.N.Q.'s sexual assault offenses was committed ten days after he had been paroled from a sentence for an earlier sexual assault and that A.N.Q.'s history of offending commenced when he was approximately thirteen years of age and continued until he was thirty years of age. According to Dr. Kern, this demonstrated lifelong patterns of behavior that were extremely difficult to control. Dr. Kern testified that he diagnosed A.N.Q. as suffering from "pedophilia, sexually attracted to males and females, non-exclusive type, and an Axis II personality disorder NOS." He also testified that there was a high risk that A.N.Q. would sexually reoffend in the foreseeable future unless he was confined to a secure facility for treatment.
On appeal, A.N.Q. raises the following contentions.
POINT I - THE APPLICABLE CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF FOR COMMITMENT UNDER THE SVPA WAS NOT MET BY THE STATE HEREIN REGARDING ANY OF THE REQUIRED ELEMENTS JUSTIFYING COMMITMENT UNDER THE ACT.
POINT II - THE COURT BELOW COMMITTED PLAIN AND REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE THE STATE'S EXPERTS' OPINIONS TO THE EXTENT THEY RELIED UPON COMPLEX DIAGNOSES CONTAINED IN OTHER EXPERTS' REPORTS.
An involuntary civil commitment can follow service of a sentence or criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26.
"[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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."
In re Commitment of W.Z., 173 N.J. 109, 132 (2002).
The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also, In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
We reject defendant's arguments and affirm the initial order of commitment, substantially for the reasons expressed by Judge Philip M. Freedman in his oral decision of May 17, 2006. We perceive no error in admission of the opinions expressed by Dr. Kern. They were reached after his examination and evaluation of A.N.Q. and were not merely the product of opinions expressed by non-testifying witnesses. In re Commitment of A.E.F., 377 N.J. Super. 473, 491 (App. Div.), 185 N.J. 393 (2005).
The order under review is affirmed.
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