September 21, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF M.N., SVP-413-05
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-413-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Parrillo and Sabatino.
M.N. appeals from an order entered on March 22, 2006, civilly committing him under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). The order was entered following an evidentiary hearing on March 21, 2006, at which the court considered expert testimony and other proofs. After reviewing the record in light of the contentions advanced on appeal, we affirm.
M.N. has a history of sexually deviant and other wrongful behavior. When he was thirteen, he sodomized another child with an umbrella. He thereafter committed various offenses as a juvenile and as a young adult, including assault, larceny, aggravated assault, and burglary.
At the age of twenty-three in August 1980, M.N. attacked a woman on the street, dragged her to a vacant lot, and forced her to have vaginal intercourse. When she resisted, he repeatedly struck the victim in the face with a bottle and threatened to kill her. After a jury trial, M.N. was convicted of sexual assault. He served most of his sentence for that crime at the Adult Diagnostic Treatment Center ("ADTC") for sexual offenders, from 1981 to 1985. The record indicates that while M.N. was at the ADTC, he was accused of sexually assaulting another resident, which caused him to be transferred to the East Jersey State Prison for the balance of his term. He was paroled in April 1987.
Subsequently, in April 1992, a jury found M.N. guilty of three counts of second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c(1), and one count of third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2. Those offenses stemmed from M.N.'s encounter with an adult female on the street on May 5, 1990. According to the State's proofs, M.N. accosted the woman, and told her that he had been watching her and wanted to have sex with her. M.N. grabbed her by the neck and dragged her to a river bank. He then had non-consensual intercourse with her until she managed to escape. M.N. was sentenced for these crimes to an aggregate twenty-five years in prison, with a minimum parole ineligibility of twelve and a half years.
Upon M.N.'s anticipated release from prison, the Attorney General filed a petition in October 2005 seeking M.N.'s civil commitment under the SVPA. After being examined by mental health experts, M.N. was temporarily committed to the Special Treatment Unit ("STU"), pending a final hearing on the commitment petition. Following that hearing, the judge, in her order of March 22, 2006, concluded that the State had proven, "by clear and convincing evidence, that [M.N.] is a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment . . . [.]" M.N. does not dispute that his 1992 convictions for sexual assault qualify under the SVPA as predicate "sexually violent offenses." See N.J.S.A. 30:4-27.26. Nonetheless, M.N. argues on appeal that the State failed to adduce sufficient proof at his hearing that he is subject to commitment under the SVPA. In particular, M.N. contends that the State failed to show that he presently has the requisite mental or personality characteristics causing him serious difficulty in controlling his sexual urges, and that he is likely to reoffend. We disagree.
Pursuant to the SVPA, an involuntary civil commitment can follow an offender's service of a sentence, or other criminal disposition, when he or she "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. As the statute makes clear, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. Such a mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). It is not necessary for the State to prove the individual's total lack of control. Id. at 126-27. Rather, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 126.
The statute further requires the State to establish a 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.
[Id. at 132.]
The court must address the individual's "present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. In that vein, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 132. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32. Our appellate review of judgments of civil commitment is exceedingly narrow in scope. We "only reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
We have also recognized that "committing judges under the SVPA are specialists in the area, and [that] we must give their expertise in the subject special deference." T.J.N., supra, 390 N.J. Super. at 226. A reviewing court should give the "utmost deference" to the judge's determination of the appropriate balancing of societal interests and individual liberty. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Such a determination will be subject to modification "only where the record reveals a clear abuse of discretion." J.P., supra, 339 N.J. Super. at 459. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58- 59 (1996).
Here, the State presented at the commitment hearing expert testimony from two mental health professionals who had reviewed M.N.'s past history and present condition: Dr. Michael McAllister, a psychiatrist, and Dr. Brian Friedman, a psychologist. M.N. stipulated, through his counsel, to the qualifications of both Dr. McAllister and Dr. Friedman to testify as expert witnesses. M.N. did not present any competing expert testimony. Nor did he testify on his own behalf. Dr. McAllister reviewed M.N.'s offense history and his treatment records. He also attempted twice to interview M.N., who was uncooperative. Based upon his review, Dr. McAllister diagnosed M.N. with antisocial personality disorder, and also with sexual sadism, or, alternatively, paraphilia NOS (Not Otherwise Specified). He further concluded that M.N. is prone to abuse alcohol, marijuana and cocaine, but was in institutional remission. In support of these diagnoses, Dr. McAllister offered the following specific pertinent findings:
Q: What is your diagnosis of [M.N.]?
A: [M.N.] has a sexual perversion. A DSM is used to describe this, and the word that they use for perversion is a paraphilia. Because of the -- [M.N.'s] admissions of fantasies of rape, the excessive force used in his offenses, the threats involved, I arrived at a conditional provisional diagnosis of sexual sadism.
Absent that diagnosis, the diagnosis would be paraphilia not otherwise specified, which he clearly fulfills a great area for, and this diagnosis reflects a repeated history of sexual offenses and deviant sexual behaviors contained within those offenses as well as his admissions to Dr. Campion that he had fantasized about rapes.
Q: You indicated you gave a conditional diagnosis of sexual sadism. What does it mean to have a conditional diagnosis?
A: That -- that means that the -- that the full evidence or the full basis for that diagnosis is not -- not yet present or not yet available.
In [M.N.'s] case, there is very little additional that would be needed to confirm that diagnosis.
Q: You also diagnosed him with an antisocial personality disorder. Why do you diagnose him with that?
A: Well, as previously discussed, [M.N.] had a history of juvenile misconduct consistent with a conduct disorder as is detailed in the reports, and he has a history not merely of the sexual offenses, but of other criminal offenses and of apparent -- what also apparently appears to be aggressive behavior while in prison as well.
In general, [M.N.'s] history and his interviews are consistent with an individual who does not respect the rights of others, does not subscribe to normal -- the normal mor[e]s of society, feels free to violate the rights of other[s] and derives pleasure from doing so as well as having a history of criminal offenses, a significant history of impulsivity as well, and a history -- a significant history of impaired conscience development.
Dr. McAllister also confirmed his view that M.N. is likely to commit another sexual offense because of these aberrant traits:
Q: Doctor, based upon the documents that you reviewed, how would you characterize [M.N.'s] risk to sexually reoffend in the foreseeable future unless confined to a secure facility for treatment?
A: He's -- in my medical opinion, [M.N.'s] risk to reoffend is extremely high.
Q: And why is that?
A: Well, I just detail a series of things, but most importantly, because [M.N.] has a deeply ingrained sexual perversion wherein he -- he enjoys coercing individuals into sex on the one hand and on the other hand would appear, it can be inferred from the way the crimes occurred that he appears to enjoy threatening, humiliating and dominating the individuals and using excessive force in doing so.
That he has other conditions including a personality disorder and a substance abuse history, which would also lend themselves to acting on these impulses, and he has failed to benefit in the past from consequences such as imprisonment and such as sexual offender treatment.
Additionally, [M.N.] has adequate and appropriate sexual outlets which did not deter him from experiencing and acting upon deviant sexual urges. I'm speaking of the fact that he was married at the time of the last offense.
The State's expert psychologist, Dr. Friedman, reached similar findings. Dr. Friedman's evaluation was also thwarted by M.N.'s refusal to be interviewed. However, from his independent review of the records, Dr. Friedman determined that M.N. exhibits sexual sadism, paraphilia NOS, and antisocial personality disorder. As Dr. Friedman testified:
Q: And what are your diagnoses for [M.N.]?
A: Well, I diagnose him with sexual sadism, which -- and that combined with the antisocial personality disorder is incredibly concerning when you have a severe personality disorder and severe sexual deviance, that's a very -- very high risk factor for committing future acts of sexual violence.
I also diagnose him with paraphilia NOS non-consent, basically referring to his arousal before sexual encounters.
Q: Let me -- let me go through his first -- the sexual sadism. Why did you diagnose that?
A: Well, it was a combination of factors. One, his behavior in many [ways] speaks for itself. He -- I mean, again, as indicated before at the age of thirteen, he sodomized a fellow teenager with an umbrella. This --this kind of behavior is not your typical adolescent aggression, oh, I'm angry at this guy, let me hit him or doing something else sexually. I mean, this is a pretty brutal attack.
One of his other victims he brutally assaulted ended up -- he struck her multiple times with a bottle, threatened to kill her. He's made statements numerous times in the past about his arousal to the victims resisting. He has apparently made comments to other evaluators that he's done this before. He's fantasized about rape scenarios.
So, you know, while I wouldn't consider him your typical organized sadist, he's a bit more disorganized. He kind of impulsively acts out on his sadistic impulses when the opportunity presents itself.
I think there's clearly an arousal to inflicting pain and fear in his victims, which is the benchmark of a sexual sadism.
Q: And why did you diagnose the paraphilia NOS non-consent?
A: That's -- I mean, similarly, he's committed multiple rapes in his lifetime against both men -- excuse me, against a boy and women. He's acknowledged in the past committing other rapes. He's admitted to fantasies about rape, and again, his arousal pattern to victims resisting certainly suggests -- suggests that part of what gets him going is the fight, is that the victims are fighting and the idea that consensual partners have commented that even during consensual sex it often felt like they were being raped.
Dr. Friedman further elaborated that M.N.'s antisocial personality stems from
[h]is history dating back to late childhood, at least late childhood, it might have even been earlier. I'm not sure what other records might suggest, but he's been aggressive, impulsive.
He has acknowledged that he has lied and he's been deceitful since an early age with others around him. He's got this long history of violating the rights of others showing very little remorse for his past behaviors.
He seems to have a deficient capacity for empathizing with others and taking a perspective of others. He's quite impulsive and you know, I think -- and a lot of this seems to be continuing even to this day.
Q: And why do you say that?
A: Well, just -- you know, even just the statement, you know, after we met -- like I said, [M.N.] was pleasant when I met with him, but just the statement that I'll go with what's there, it's not all that bad suggests that he continues to minimize his past behaviors.
Dr. Friedman also opined that M.N.'s diagnoses and behavioral history present a "very high risk factor for committing future acts of sexual violence."
At the end of the hearing, Judge Perretti placed a detailed oral opinion on the record, stating her reasons for requiring M.N.'s civil commitment. After canvassing the State's unrebutted proofs, the judge expressed the following conclusions:
The evidence presented was clear and convincing, and the [c]court is clearly convinced that there can be no doubt that this respondent is a sexually violent predator.
He suffers from abnormal mental conditions and personality disorder that influence his volitional, cognitive and emotional capacities in such a way as to predispose him to commit sexually violent acts.
As a result of his combined conditions, he has severe difficulty controlling his violent sexual behavior, and it is highly likely that he will recidivate if not confined.
This is a sexual sadist who has committed grotesque acts of sexual violence over a period of twenty years.
. . . This person poses a grave risk to society and must be confined for social order and the protection of the populous.
We have performed our own review of the record. The judge's determination that M.N. 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 reoffend is indeed supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 132.
We discern no "clear abuse of discretion" in the judge's ruling to continue M.N.'s civil commitment, J.P., supra, 339 N.J. Super. at 459, nor any manifest deviation from the legal principles under the SVPA. Indeed, the evidence is overwhelming. M.N. further argues that the State's experts improperly relied upon hearsay proofs in reaching their assessments. To the contrary, we are satisfied that the experts' opinions were properly admitted. The experts utilized M.N.'s offense and mental health records simply to assist them in reaching their own independent judgments, as they are entitled to do under N.J.R.E. 703, consistent with the manner in which such hearsay documents are used by others in their fields of expertise. See J.H.M., supra, 367 N.J. Super. at 612. Moreover, M.N.'s refusal to be interviewed by the State's experts increased their justification in looking to documentary sources in order to gain insights about his past behavior and his present condition.
The judgment of commitment is affirmed.
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