August 2, 2007
IN THE MATTER OF CIVIL COMMITMENT OF J.C.K., SVP-346-03.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-346-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges C.S. Fisher and Grall.
J.C.K. appeals from an order of September 20, 2004, civilly committing him to the Special Treatment Unit (STU), which is the secure 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. An annual review hearing, which is required by N.J.S.A. 30:4-27.35 and N.J.S.A. 30:4-27.32, was scheduled for August 26, 2005.*fn1
J.C.K. had been convicted of "sexually violent offense[s]" within the meaning of N.J.S.A. 30:4-27.26 and was eligible for commitment pursuant to the SVPA. On April 4, 1995, J.C.K. entered a plea of guilty to one count of aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and three counts of sexual assault, N.J.S.A. 2C:14-2b. He entered that plea in return for the State's agreement to dismiss four counts of endangering the welfare of a child, N.J.S.A. 2C:24-4, and to recommend an aggregate sentence of fifteen years. In entering his plea J.C.K. acknowledged that between October 1992 and May 1993, when he was twenty years old, he had intercourse with a girl under the age of thirteen on various occasions and sexual contact with three other children. Two of the children were related to J.C.K. and two of the children were not; three were girls and one was a boy.
On August 4, 1995, J.C.K. was sentenced to a fifteen-year term of imprisonment. In accordance with N.J.S.A. 2C:47-1 to -3, J.C.K. was evaluated by a psychologist, who determined that his criminal conduct was "characterized by a pattern of repetitive compulsive behavior" and amenable to sex-offender treatment; the court agreed and ordered J.C.K. to serve his sentence at the Adult Diagnostic and Treatment Center (A.D.T.C.).
The Attorney General filed this petition for J.C.K.'s civil commitment pursuant to the SVPA on November 12, 2003, two weeks prior to the date on which J.C.K. was to complete service of his sentence at A.D.T.C. The petition was supported by the opinions of two psychiatrists who concluded that J.C.K. was suffering from pedophilia, had made insufficient progress in treatment available at A.D.T.C. and met the criteria for commitment under the SVPA. An order of temporary commitment was entered on November 19, 2003. Judge Perretti held a final hearing on J.C.K.'s commitment on September 14 and 15, 2004.
Judge Perretti found clear and convincing evidence that J.C.K. was convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder and presently has serious difficulty controlling harmful sexually violent behavior that causes him to be highly likely to reoffend if not committed to the STU for further treatment. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see In re Commitment of W.Z., 173 N.J. 109, 120, 131-32 (2002); N.J.S.A. 30:4-27.26. Her oral decision of September 20, 2004, includes a thorough and comprehensive discussion of the evidence presented, including J.C.K.'s criminal history, multiple diagnoses, and progress in treatment. The decision also includes a statement of factual findings and reasons explaining the basis for the judge's determination that grounds for commitment pursuant to the SVPA were established by clear and convincing evidence.
We affirm substantially for the reasons stated by Judge Perretti and provide only a brief summary of the evidence most pertinent to the issues J.C.K. raises on appeal. Dr. Michael R. McAllister, a forensic psychiatrist on the staff of the STU,*fn2 and Robert S. Carlson, a psychologist on the staff of the STU, testified on behalf of the State. Dr. McAllister interviewed and evaluated J.C.K. prior to the hearing and reviewed reports of his progress in treatment. J.C.K. declined a follow-up interview with Dr. McAllister and declined to participate in any interview with Dr. Carlson. Both Dr. McAllister and Dr. Carlson acknowledged reviewing evaluations, treatment records and test results included in J.C.K.'s files, but each explained that he had formulated his own opinion.
During his interview with Dr. McAllister, J.C.K. admitted that he had molested "about fifteen" children and acknowledged coercing teenagers and doing a "lot of manipulation to earn [the] trust" of his child victims. He told Dr. McAllister, "I know I still need some treatment." Dr. McAllister concluded that J.C.K. suffered from pedophilia. Dr. McAllister and Dr. Carlson both concluded that records of J.C.K.'s treatment indicated that he had not made sufficient progress in treatment to minimize the serious risk of recidivism posed by his condition. Dr. McAllister described J.C.K. as being at "grave" risk of offending again if not confined for "successful and extensive sex offender treatment." Dr. Carlson concluded that if released without further treatment, J.C.K. would pose a significant threat of acting out sexually.
Dr. Fulford, who testified on behalf of J.C.K., agreed that he suffered from pedophilia. He concluded that J.C.K.'s risk was less serious and could be managed with outpatient treatment. A person who has committed a sexually violent offense, as defined in N.J.S.A. 30:4-27.26, is subject to commitment under the SVPA.
On appeal J.C.K. argues:
I. THE JUDGMENT OF THE LAW DIVISION SHOULD BE VACATED BECAUSE THERE WAS NO TESTIMONY FROM A PSYCHIATRIST ON J.C.K.'S TREATMENT TEAM WHO CONDUCTED A PERSONAL EXAMINATION OF THE DEFENDANT. (Not Raised Below).
II. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.C.K. IS SUBJECT TO CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR'S ACT.
III. THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE'S WITNESSES TO RELY UPON PRIOR OUT OF COURT OPINIONS OF FORENSIC EXPERTS.
These arguments lack sufficient merit to warrant discussion, beyond a brief comment on Dr. McAllister's status as a member of J.C.K.'s treatment team, in a written opinion.
R. 2:11-3(e)(1)(E). Pursuant to N.J.S.A. 30:4-27.30b, the State must present the testimony of a psychiatrist on the person's treatment team. "Treatment team" is defined broadly to include "the individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of sexually violent predators."
N.J.S.A. 30:4-27.26. As noted above, Dr. McAllister is a psychiatrist and is on the staff of the STU. His testimony satisfies the requirement of N.J.S.A. 30:4-27.30b. See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 26 (App. Div.), certif. denied, 188 N.J. 492 (2006).