October 2, 2007
IN THE MATTER OF THE COMMITMENT OF R.R.R., SVP-373-04, PETITIONER-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-373-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 11, 2007
Before Judges Wefing, Parker and Lyons.
R.R.R. is a forty-one-year-old man who was serving a state prison term of seven years for second degree kidnapping and third degree theft. Before his release, the Attorney General filed a petition for R.R.R.'s civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. R.R.R. now appeals from a January 19, 2006 order finding that he is a sexually violent predator and ordering that he be committed to the Special Treatment Unit, pursuant to the SVPA. We affirm.
A short recitation of the pertinent facts is essential to our analysis. R.R.R. was born on July 25, 1966. On January 8, 1986, R.R.R. and two other individuals abducted a thirty-two year-old woman, J.D., as she was walking to her car. As she was unlocking her car, one of the men came up to her with a gun and told her to get into the car. All three men entered the car and J.D. was told to drive off. Subsequently, J.D. was told to get into the back seat, where two of the men raped her. The third man, identified as R.R.R., attempted to rape J.D., but was unable to do so and stopped, stating that she "got him mad." After driving around, deliberating whether to shoot J.D., the men told her to leave the car. One of the men threw J.D. a dollar.
On October 31, 1986, R.R.R. was convicted by a jury of one count of first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b); one count of first-degree robbery in violation of N.J.S.A. 2C:15-1; and three counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(3) [collectively, the "1986 Conviction"]. He was sentenced to twenty years imprisonment for the kidnapping conviction. R.R.R. was also sentenced to fifteen years for the robbery conviction, ten years for two of the aggravated sexual assault convictions, and fifteen years imprisonment for one of the sexual assault convictions, all to run concurrently with the kidnapping conviction. He was paroled in 1993.
On May 25, 1996, while a parole absconder, R.R.R. was arrested again. He was charged with first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2 and second-degree kidnapping in violation of N.J.S.A. 2C:13-1. The seventeen year-old victim, S.A., claimed that on May 8, 1996, R.R.R. approached her while she was walking on the street. After S.A. informed R.R.R. that his advances were not welcome, he grabbed the victim and placed his hand over her mouth. R.R.R. threatened to "blow her head off" if she did not comply with his demands to allow him to sexually assault her. She complied. R.R.R. then raped S.A.
Later, when shown a group of photographs of possible suspects by the police, S.A. began sobbing and crying when she saw R.R.R.'s black and white photograph. She informed the officer that R.R.R. was the person who raped her.
R.R.R. subsequently pled guilty to second-degree kidnapping and received a seven-year term of incarceration ["1996 Conviction"]. The sentencing judge indicated on the record at the plea hearing that the kidnapping charge was downgraded to a second-degree offense and the sexual assault charges were dropped. The seven-year term would run concurrently with the parole violation. According to the record, the statement of S.A. to the police was annexed to the pre-sentence report (PSR). In that statement, S.A. details the sexually violent nature of the assault. At R.R.R.'s July 16, 1996 plea hearing, R.R.R. was asked one question by his attorney:
Q: [R.R.R.], I call your attention to the 8th of May of this year in the city of Newark. At that time and place did you hold one -- an individual, age 17, with the initials S.A. against her will and prevent her from leaving with the intent to assault her?
To that question, R.R.R. responded, "Yes." After establishing that R.R.R. had moved the victim from one location to another, the court found a sufficient factual basis to sustain a kidnapping conviction pursuant to N.J.S.A. 2C:13-1.
R.R.R. was sentenced on October 17, 1996 for the kidnapping offense, the parole violation, and an unrelated theft charged. In referring to the PSR which included S.A.'s detailed statement of her sexual assault, R.R.R.'s counsel stated that the only correction to the PSR was to strike an arrest in Montclair that R.R.R. said did not occur. After the court noted that correction, R.R.R.'s counsel said, "[o]ther than that, it's accurate."
R.R.R. has told several different versions of his interactions with S.A. R.R.R. has claimed that he was dating S.A. and had consensual sex with her. R.R.R. has also asserted that there was some confusion since there are two people named S.A. Later, R.R.R. claims that he broke off his platonic relationship with S.A. when he discovered that she was seventeen years-old, which was illegal or against his personal code. He asserts that S.A. falsely claimed that she was raped because she was seeking revenge for ending their relationship by forcing her to leave his car by some unspecified means. These accounts vary strikingly from S.A.'s statement to the police annexed to the PSR describing a violent sexual assault by a stranger.
While R.R.R. was still incarcerated for the 1996 Conviction, the Attorney General filed a petition on May 18, 2004, to civilly commit him under the SVPA. The State attached two clinical certifications in support of its application, one prepared by Donald Reeves, M.D. and one prepared by Vasudev N. Makhija, M.D., both psychiatrists employed by Central Medical Services, the healthcare entity that provides medical services to State Prison inmates.
In his certification dated May 18, 2004, Dr. Reeves found, based on personal examination and review of R.R.R.'s medical, criminal, and other history, that R.R.R.'s Personality Disorder NOS predisposed him to commit acts of sexual violence. As a result of his Personality Disorder NOS, [R.R.R.] has serious difficulties controlling his harmful sexual behavior such that it is highly likely that he will not control his sexually violent behavior and will re-offend.
According to Dr. Reeves, R.R.R. scored a 7 on the Static-99, which is "associated with a group of offenders who exhibit a 52% probability of re-conviction for a sexual offense within 15 years of release."
As part of his evaluation, Dr. Reeves considered the 1996 police report, among other documents, to obtain R.R.R.'s personal history. The 1996 police report contained a summary of S.A.'s account of the assault. Although he was not convicted of a sexually violent offense in 1996, Dr. Reeves stated that R.R.R. "denies he committed the offense. I do not believe him."
Dr. Makhija also examined R.R.R. Based on that clinical examination and a review of various medical and criminal records and reports, including a PSR and a victim statement, Dr. Makhija certified that he diagnosed R.R.R. with Personality Disorder NOS with Antisocial Features and that R.R.R. suffers from a mental abnormality (as defined by the Act) or personality disorder that makes the person likely to engage in act of sexual violence if not confined to a secure facility for control, care and treatment.
Based in part on these certifications, the court found on May 27, 2004, probable cause to believe that R.R.R. was a sexually violent predator (SVP) in need of commitment and temporarily committed him to the State of New Jersey Special Treatment Unit (STU), pending a final hearing on the matter.
On September 20, 2004, the court heard and denied R.R.R.'s May 24, 2004 motion to dismiss. The initial commitment hearing was held on December 9, 2004, December 5, 2005, January 9, 2006 and January 17, 2006. On January 19, 2006, the court read its opinion into the record finding R.R.R. a sexually violent predator and ordering that he be committed to the STU, pursuant to the SVPA. R.R.R. now appeals from the trial court's order signed January 25, 2006.
Following submission of his appeal, R.R.R. moved to supplement the record, pursuant to Rule 2:5-5(a). On September 17, 2007, we granted that motion.
In support of his appeal, R.R.R. presents the following arguments for our consideration:
R.R.R.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) (partially raised below).
THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES, WHICH WAS BASED ON IMPROPER HEARSAY EVIDENCE IN VIOLATION OF IN RE CIVIL COMMITMENT OF A.E.F., 377 N.J. SUPER. 489 (APP. DIV. 2005), TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT R.R.R.
BY USING HEARSAY EVIDENCE TO GO BEHIND R.R.R.'S 1996 PLEA AGREEMENT AND RE-TRY HIS PRIOR CASE THE TRIAL COURT VIOLATED THE DICTATES OF BLAKELY V. WASHINGON, 542 U.S. 296 (2004) AND VIOLATED R.R.R.'S RIGHTS UNDER THE DOUBLE JEOPARDY AND THE EX POST FACTO CLAUSES OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
R.R.R.'S INITIAL INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES FUNDAMENTAL FAIRNESS AS SET FORTH IN MATTHEWS V. ELDRIDGE, 424 U.S. 319, 96 S.CT. 893, 47 L.ED.2D 18 (1976) (partially raised below).
R.R.R.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE I, PARAGRAPH 1 (EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES) (not raised below).
THE STATE FAILED TO SATISFY THE STATUTTORY [sic] REQUIREMENTS FOR COMMITMENT WHEN IT DID NOT PRODUCE A PSYCHIATRIST WHOM [sic] WAS A MEMBER OF R.R.R.'S TREATMENT TEAM FOR THE HEARING (not raised below).
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT R.R.R. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.
A. STANDARD OF REVIEW.
B. THE STATE FAILED TO PROVE R.R.R. SUFFERED FROM A MENTAL ABNORMALITY THAT CAUSED HIM TO BE PREDISPOSED TO COMMIT ACTS OF SEXUAL VIOLENCE.
C. THE STATE FAILED TO PROVE THE LACK OF CONTROL REQUIREMENT OF W.Z.
"Our scope of review of civil commitment judgments is exceedingly narrow." In re Commitment of J.M.B, 395 N.J. Super. 69 (App. Div. 2007) (citing In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003)). The trial court's decision is given "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)).
We begin our analysis by examining the plain language of the statute. First, an individual must be convicted, adjudicated delinquent, or found not guilty by reason of insanity, of a "sexually violent offense" or declared incompetent to stand trial for such an offense to be deemed a sexually violent predator under the SVPA. N.J.S.A. 30:4-27.26. See also In re Commitment of J.P., 393 N.J. Super. 7, 10-11 (App. Div. 2007). The SVPA enumerates offenses considered to be "sexually violent offense:"
(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.A. 2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.A. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or
(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.
Subsection (b) is an open-ended provision that includes "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). As long as the predicate act fits the definition contained within the SVPA, it does not matter when it was committed. In re Commitment of P.Z.H., 377 N.J. Super. 458, 465-66 (App. Div. 2005).
Additionally, the SVPA requires that the State prove that the committee "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. Our Supreme Court has further instructed that the threat must be proven "by demonstrating that the individual has serious difficulty 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) (emphasis added).
In her opinion of January 19, 2006, Judge Perretti found that the State established the first criterion of the statute by submitting proof of R.R.R.'s 1986 Conviction, which included the predicate sexually violent offense as defined by the SVPA of aggravated sexual assault. Additionally, she found Dr. Zeiguer's testimony a persuasive factor in determining that R.R.R. suffered from an "abnormal mental condition and personality disorder that adversely impacts his volitional, emotional and cognitive capacity . . . as to predispose him to commit sexually violent acts." In addition, she found that he was "highly likely" to commit sexually violent acts if not committed.
Turning first to R.R.R.'s second argument, R.R.R. argues that the trial court's reliance on hearsay testimony was improper and requires reversal. R.R.R. also contends that the trial court's reliance upon Dr. Zeiguer's report, which R.R.R. asserts was based upon impermissible hearsay, was error requiring reversal.
It is well-settled that expert witnesses' opinions may rely on hearsay evidence "as long the hearsay information 'was of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" In re Commitment of J.H.M., 367 N.J. Super. 588, 612 (App. Div. 2003) (quoting N.J.R.E. 703); J.P., supra, 393 N.J. Super. at 12 (concluding that a committee's argument that the court erred in relying on hearsay in the expert's testimony and reports was "without sufficient merit to warrant extended discussion"). Our court further cautioned trial judges to "take pains to consider such hearsay material not as substantive evidence but only as a basis for the expert's opinion." In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004) (citing J.H.M., supra, 367 N.J. Super. at 613; In re Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004)).
A court in a civil commitment action may examine the offense circumstances irrespective of the committee's plea to a non-sexually violent offense. The information underlying the sexual nature of the 1996 Conviction was included in the PSR. Our Supreme Court has instructed us that the defendant is to be provided with a copy of the PSR and a fair opportunity to object or challenge any adverse information contained therein. State v. Newman, 132 N.J. 159, 170 (1993). When presented with the opportunity to correct or object to anything in the PSR, R.R.R.'s attorney only asked to have an arrest removed from his prior record and represented that the balance of the report was accurate. Today, we have no reason to question Judge Perretti's finding concerning the veracity of the PSR.
Also, we have previously permitted the use of hearsay statements in a PSR specifically as a basis for a psychiatrist's opinion in civil commitment proceedings. J.M.B., supra, 395 N.J. Super. 69 (App. Div. 2007); E.S.T., supra, 371 N.J. Super. at 576; J.H.M., supra, 367 N.J. Super. at 611-14. Additionally, we have also permitted psychiatrists to consider other hearsay evidence in their evaluations. See J.H.M., supra, 367 N.J. Super. at 613; A.X.D., supra, 370 N.J. Super. at 201; N.J.R.E. 803(c)(6). To limit psychiatrists to the pled-to offenses would unreasonably undermine the doctors' ability to weigh relevant hearsay information commonly relied upon as a basis for diagnoses.
We find that Judge Perretti properly considered the expert testimony of Dr. Zeiguer without considering the hearsay as substantive evidence. Judge Perretti entered her findings on the record on January 19, 2006. After weighing the evidence that Dr. Zeiguer relied on as a basis for his opinion that R.R.R. "has a diagnosis of paraphilia NOS for non-consent," a view not adhered to by Drs. Foley and Carlson, Judge Perretti determined:
Based on the foregoing observations, it has been determined that the material relied upon by Dr. Zeiguer in reaching his opinion that the kidnapping offense in 1996 against [S.A.] was also a sexually violent offense, that there were sexual components to the kidnapping and, indeed, [R.R.R.] has admitted at time of his plea that he kidnapped the victim with the intention to assault her.
Based on this finding, it is fair and proper for Dr. Zeiguer to consider the respondent as a two-time violent sex offender, the second violent sex offense having been committed while on parole and indeed as a parole absconder after the first sexually violent offense.
Dr. Zeiguer diagnoses the defendant, as has been said, with a paraphilia based on these two offenses, although both of them have been denied by the respondent. The first is established by the conviction. The second is based on reliable evidence of the sort usually and properly considered by evaluators as has been testified by Dr. Zeiguer, Dr. Carlson and Dr. Foley.
The Court has disregarded the opinion of Dr. Foley and Dr. Carlson that [R.R.R.] does not suffer from a sexual paraphilia because the Court is convinced that both of the psychologists misjudged the reliability of the evidence of the rape of [S.A.], giving credence to the incredible fiction created by [R.R.R.]. . . .
Yes. It also appears that both of the psychologists, Drs. Carlson and Foley, disregard the variety of areas in which the respondent has been demonstrated to have been unreliable in his self-reports. The psychologists did not appear to the Court to place sufficient importance on the actuarial score and neither suggested any dynamic factors which would tend to mitigate the risk, which was statistically put forward by the instrument.
The Court is clearly convinced that [R.R.R.] is a sexually violent predator. He has been convicted of a sexually violent offense as defined by the statute. And there is more than reasonable belief that he committed a second sexually violent offense while an absconder from parole on the first.
[R.R.R.] suffers from abnormal mental condition and personality disorder that adversely impact his volitional, emotional and cognitive capacity such as - - so as to predispose him to commit sexually violent acts. He has severe difficulty controlling his violent behavior, as a result of which it is likely that he will commit sexually violent offenses if not committed. . . .
Judge Perretti examined the evidence relied upon by Dr. Zeiguer not for the purpose of ascertaining and determining the truth of the accusation, but to determine the reasonableness and weight to be given to the credibility of the expert's testimony. In the same fashion, the judge discounted the testimony of the committee's witnesses who relied merely on R.R.R.'s self-reports which had been demonstrably unreliable.
In our view, Judge Perretti's determination that R.R.R.'s second offense had sexually violent components was a proper exercise of her discretion in her attempt to weigh experts' testimony to determine whether R.R.R. suffers from a mental abnormality or personality disorder and is highly likely to recidivate. Furthermore, the risk that the testifying expert would act as a "conduit" to disclose hearsay information to a jury is rendered insignificant by having a judge as a fact-finder. J.H.M., supra, 367 N.J. Super. at 613 (quoting State v. Eatman, 340 N.J. Super. 295, 302 (App. Div. 2001)).
We recognize the significant liberty interests at stake in a civil commitment proceeding. W.Z., supra, 173 N.J. at 125. Accordingly, the committee's counsel is guaranteed the opportunity to cross-examine the State's expert witnesses and address the basis for their opinions as appropriate. Indeed, R.R.R.'s counsel did so in this case. R.R.R. had sufficient opportunity to address the credibility of witnesses and the bases for the expert opinions. We are satisfied that Judge Perretti appropriately exercised her discretion in considering the information in light of both parties' arguments.
R.R.R.'s sixth point claims that the State failed to satisfy the SVPA when it did not produce a psychiatrist who was a member of R.R.R.'s treatment team for the hearing. R.R.R. contends that because Dr. Zeiguer was not an actual treating psychiatrist, his report and testimony is useless to the court. R.R.R. argues that this court's decision in In re Commitment of A.H.B., 386 N.J. Super. 16 (App. Div.), certif. denied, 188 N.J. 492 (2006), is misplaced and does not comply with N.J.S.A. 30:4-27.30(b). The SVPA, in contrast to the statute for civil commitment of mentally ill persons, N.J.S.A. 30:4-27.2(dd). more broadly defines "treatment team" to include not only individuals, but also "agencies or firms." N.J.S.A. 30:4-27.26. Under similar facts in a similar situation, we held that
Dr. Zeiguer is employed by the Division of Mental Health Services in the Department of Human Services, which agency provides the treatment "appropriately tailored to address the specific needs of sexually violent predators." N.J.S.A. 30:4-27.34. As a psychiatrist working for the Division at the STU, which houses only "sexually violent predators," In re Commitment of D.L. and C.M., 351 N.J. Super. 77, 80 (App. Div. 2002), certif. denied, 179 N.J. 373 (2004), we consider Dr. Zeiguer, to be a member of [the committee's] treatment team, even though the doctor himself may not have provided any treatment services to [the committee]. See N.J.S.A. 30:4-27.26. [A.H.B., supra, 386 N.J. Super. at 26.]
Likewise, we find that Dr. Zeiguer is a member of R.R.R.'s treatment team as defined by the SVPA.
In his first and third arguments, R.R.R. challenges the constitutionality of his commitment, claiming it violates his rights under the double jeopardy and ex post facto clauses of the United States and New Jersey Constitutions. These arguments lack sufficient merit to warrant an extended discussion. R. 2:11-3(e)(1)(E); J.H.M., supra, 367 N.J. Super. at 607-08. "'[C]ivil commitment,' from a constitutional perspective, nonetheless remains civil." Kansas v. Hendricks, 521 U.S. 346, 380, 117 S.Ct. 2072, 2091, 138 L.Ed. 2d 510 (1997) (Breyer, J., dissenting). As we have held before, a committee's double jeopardy and ex post facto claims fail, as the proceeding is civil, not criminal. J.H.M., supra, 267 N.J. Super. at 608 (citation omitted) (SVPA was not punitive and did not amount to criminal proceedings). See also P.Z.H., supra, 377 N.J. Super. at 465 ("The Act was intended to protect society. . . ."). There cannot be a violation of either federal or state ex post facto clauses as there is no imposition of punishment. Hendricks, supra, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed. 2d 510.
Likewise, R.R.R.'s fifth argument, an equal protection challenge, fails. This court has addressed the equal protection claim with respect to the SVPA. Relying upon Jackson v. Indiana, 406 U.S. 715, 723-31, 92 S.Ct. 1845, 32 L.Ed. 2d 435 (1972), we stated that "[t]here is no equal protection issue where a civil commitment statute treats both sex offenders and other mentally ill persons the same. . . ." J.H.M., supra, 367 N.J. Super. at 606 (discussing right to a jury).
Nor does R.R.R.'s substantive due process challenge have any merit. Our Supreme Court has squarely addressed this, stating that "[t]he SVPA is not violative of substantive due process provided that the findings to support an individual's civil commitment under the Act comport with the requirements of this opinion." W.Z., supra, 172 N.J. at 134.
In his fourth argument, R.R.R. claims that the SVPA violates fundamental fairness as set forth in Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed. 2d 18, 33 (1976). Our Supreme Court adopted the factors articulated in Matthews to be balanced in determining if a statute violates fundamental fairness as:
first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [In re Registrant, C.A., 146 N.J. 71, 93 (1996) (quoting Matthews, supra, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed. 2d at 33.]
This court has noted that "[c]ommitment laws were enacted to strike a balance between the interest of safety for the individual and the community, and the fundamental liberty interests of the person the State seeks to commit." In re Commitment of J.J.F., 365 N.J. Super. 486, 502 (App. Div. 2004). As discussed above, the procedural safeguards in place ensured a fair hearing in light of R.R.R.'s liberty interests which were at stake. We find that none of R.R.R.'s procedural due process rights were violated and, accordingly, the commitment proceedings under the SVPA did not violate his right to fundamental fairness.
Lastly, we find no merit in the committee's seventh argument that the State failed to prove by clear and convincing evidence that he should be involuntarily committed. As discussed above, to be committed under the SVPA, the State must prove by clear and convincing evidence that: (1) the committee was convicted, adjudicated delinquent, or found not guilty by reason of insanity, of a "sexually violent offense" or declared incompetent to stand trial for such an offense to be deemed a sexually violent predator under the SVPA and (2) the committee "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; W.Z., supra, 173 N.J. at 130-32.
There is no dispute that the 1986 Conviction satisfies the first prong of the test. The aggravated sexual assault charges are among the enumerated predicate crimes under the SVPA. N.J.S.A. 30:4-27.26. The only dispute is whether R.R.R. "suffers from a mental abnormality or personality disorder" that would satisfy the second prong.
Dr. Zeiguer, through a clinical examination of R.R.R., a review of his record, and an actuarial evaluation of R.R.R. determined that he did, in fact, suffer from paraphilia NOS. Dr. Zeiguer also diagnosed a severe personality disorder NOS, with antisocial traits. Additionally, Dr. Zeiguer opined that R.R.R. was highly likely to re-offend.
R.R.R.'s witnesses had differing opinions. Dr. Foley testified that he had a "question mark" as to whether R.R.R. was highly likely to re-offend. Based on R.R.R.'s self-reports, Dr. Carlson opined that R.R.R. was not likely to re-offend. Dr. Carlson admitted, however, that if R.R.R. took S.A. against her will in 1996, that his opinion regarding the likeliness of re-offending would change.
Properly weighing all of the expert testimony, Judge Perretti found Dr. Zeiguer's testimony to be the only credible expert testimony and the testimony of Drs. Foley and Carlson to be incredible. Dr. Zeiguer's testimony contains sufficient basis for Judge Perretti to make her determination. Therefore, after a careful consideration of the record*fn1 in light of the arguments of counsel and the applicable law, we are satisfied that the State has met its burden of proving by clear and convincing evidence that R.R.R. should be deemed a sexually violent predator in need of involuntary commitment.