October 19, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF H.T.G., SVP-335-03.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-335-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 9, 2007
Before Judges Lintner, Parrillo and Sabatino.
This is an appeal from an order involuntarily committing H.T.G., pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. H.T.G. contends that his commitment under the SVPA was punitive, a violation of his right against double jeopardy and thus unconstitutional. He also asserts that the State failed to produce an appropriate expert witness and that the judge erred in finding him highly likely to reoffend. We disagree and affirm essentially for the reasons expressed by Judge Freedman in his bench opinion of February 14, 2005.
H.T.G. graduated from the University of Havana, Cuba with a medical degree in 1967. He immigrated to the United States in 1972 and completed a pediatric residency, after which he opened a solo practice in Newark consisting largely of Medicaid eligible patients.
H.T.G. began sexually assaulting his child patients sometime in 1988. On May 6, 1994, he was convicted of the April 21, 1993, sexual assault of Y.C., endangering, and hindering apprehension, for which he received an aggregate fifteen-year term of imprisonment with five years of parole ineligibility.
Y.C., an eight-year-old girl, had been brought into H.T.G.'s office for an eye examination. At the time, H.T.G. had entered into an agreement with the Department of Human Services by which he agreed to have a Licensed Practical Nurse (LPN) present for the entire duration of all examinations conducted by him of Medicaid recipients, in lieu of suspension, pending the resolution of allegations of sexual abuse in a prior indictment. In a darkened room, without the presence of an L.P.N., H.T.G. reached under Y.C.'s skirt, spread her legs, fondled her vagina, pulled out his penis, and ejaculated on the child's clothing.
Y.C.'s mother, who had been in the darkened room, inquired after the examination as to what the wet substance was on her daughter's clothing. H.T.G. responded that it was his tears.
H.T.G.'s wife requested Y.C.'s mother not to report the incident, however, she refused.
Following his jury conviction, H.T.C. pled guilty to multiple earlier sexual assaults of three other child patients, F.O., R.A., and M.M. F.O., a twelve-year-old boy, was sexually assaulted by H.T.G. on several occasions in 1988 when H.T.G. forced his tongue into F.O.'s mouth, fondled his penis, buttocks, and chest, and had F.O. touch his penis. On several occasions in 1990 and 1991, H.T.G. fondled, kissed, and digitally penetrated R.A., a fourteen-year-old girl. Between 1990 and 1991, H.T.G. molested M.M. five times when she was ten and eleven years of age. H.T.G. put his penis in M.M.'s mouth, placed her hand on his penis, licked her breast and vagina, and, on one occasion, ejaculated on her face. He also paid M.M. fifteen to twenty dollars and asked her not to tell anyone.
Prior to the completion of his sentence, H.T.G. was evaluated for a pre-release risk assessment by Dr. Richard Mucowski, Ph.D., and Dr. Vasudev Makhija, M.D. Both doctors recommended commitment under the SVPA. On the eve of H.T.G.'s scheduled release, the State filed its application for civil commitment to the Special Treatment Unit (STU), which resulted in a temporary order of commitment.
H.T.G.'s initial hearing for permanent commitment was held over a four-day period. The following testimony was presented. Dr. Luis Zeiguer, a psychiatrist, diagnosed H.T.G. with Paraphilia Not Otherwise Specified (NOS) with an attraction to children that met the criteria for Pedophilia under the Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). He found that H.T.G. had Personality Disorder NOS with narcissistic traits, and focal and generalized seizures. He reported that H.T.G. told him that "he opted for a plain prison setting with no treatment because [of] the certainty of a maximum sentence time."
He found no relationship between H.T.G.'s history of seizure disorder*fn1 and his pedophilic behavior. According to Zeiguer, H.T.G.'s actions in planning and attempting to keep secret his conduct were not consistent with a seizure disorder. His actions also indicated the need to rule out a diagnosis of "acquired cognitive and personality changes (organic deterioration)." He concluded that H.T.G. "suffers from a mental abnormality that affects his cognitive, emotional, and volitional capacity in a manner that predisposes him to commit future acts of sexual violence." According to Zeiguer, H.T.G. did not meet the standard for conditional release under the SVPA. His impression was that H.T.G. was "highly likely to engage" in sexually violent acts if released and there is no reasonable program that could reduce that below a highly likely level to warrant his conditional release.
Dr. Robert S. Carlson, a psychologist at the STU, examined H.T.G. and provided testimony concerning his opinions. After reviewing H.T.G.'s test results, Carlson diagnosed H.T.G. as suffering from Pedophilia; Paraphilia, NOS (hebephilia, males and females), Personality Disorder, NOS (dependent and narcissistic features), and Seizure Disorder. Carlson opined "that it is not probable that an underlying neurological disorder was the sole or primary motivator of [H.T.G.'s] sexual offending behavior." He believed that H.T.G. has not paid enough attention to some of the factors that resulted in his sexually offending behavior and has been confused over why the events occurred. Carlson opined that there was a "significant risk at this point in time" that H.T.G. would reoffend based upon H.T.G.'s "lack of any treatment," his "ongoing angst and confusion" and "inability to understand why" his sexual deviant act as occurred.
H.T.G. presented testimony from two psychologists, Dr. Jonathan H. Mack and Dr. Timothy P. Foley. After running a battery of neuropsychological tests, Mack reported that H.T.G. suffers from "Personality Change Due to Other Medical Conditions[;] Cognitive Disorder NOS; Attention Deficit Hyperactivity Disorder (ADHD) related to [H.T.G.'s] brain damage; History of Pedophilia, exclusive type; Dysthymic Disorder; Anxiety Disorder NOS . . .; Personality Disorder, NOS with narcissistic features; and History of Post Concussion Syndrome/Brain Damage." Mack believes that H.T.G. suffers from significant brain damage to his left hemisphere and frontal areas, which, combined with a history of seizure disorders and his defensive and narcissistic personality, caused his inappropriate sexual behavior.
According to Mack, H.T.G.'s actions did not occur during his seizures but in the times between his seizures, which he identified as interictal periods. Mack believed H.T.G. had a history of pedophilia that was due, in part, to his personality disorder rather than an obsession with prepubescent children. He believed, nevertheless, that H.T.G. would be amenable to a regimen of neuropsychiatric treatment and was not highly likely to recidivate. He, however, did not believe that H.T.G. should be allowed to have unsupervised contact with any school aged or even adolescent children.
After examining H.T.G., Foley reported that although H.T.G. had a history of sexual crimes, which included one prepubescent and three post-pubescent children, there was no indication of current pedophilia or psychopathy. Foley did not believe that H.T.G. suffered from pedophilia even though he had one incident with an eight-year-old child, pointing out that his other sexual misconduct was with teenagers who were post-pubescent. According to Foley, although illegal and indicative of a lack of control, it was not deviant behavior for H.T.G. to have sexual interest in girls age thirteen or older.
Foley believed that H.T.G.'s predisposition to sexual violent behavior was related to his neurological disorder, which evolved from an atmosphere of entitlement toward molestation of his patients as a result of his status as a physician conducting examinations of children. He concluded that, with proper medical management of his neurological disorder on an out-patient basis, H.T.G. could be released to the community.
Zeiguer was called as a rebuttal witness. He did not believe, as did Mack, that H.T.G.'s offending conduct was related to his seizure disorder. However, he pointed out that his opinion was based upon his review of literature in the field rather than any studies conducted by him. Judge Freedman appointed an independent psychiatrist, Dr. Stephen Simring, to evaluate the defendant and render a report to the court.
Simring examined H.T.G., and rendered a report. He testified that H.T.G.'s sexual violent behavior did not stem from his brain damage. He diagnosed H.T.G. as a pedophile. Simring testified that Mack's neuropsychological assessments were not relevant. He pointed out that if H.T.G.'s frontal lobe brain damage was related to his sexual violent behavior there would be "no hope" for a cure because there was no available treatment for frontal lobe brain damage. Simring pointed out that H.T.G.'s repetitive and compulsive attraction to children, his denial when confronted with his own semen, and his sexually violent behavior toward Y.C. after having previously been sanctioned "meets all the criteria" for pedophilia. Simring concluded that, because H.T.G. has remained untreated, he would be a danger if released. Although he believed that H.T.G. would do well with treatment, he did not believe that out-patient treatment in the community was appropriate at this time.
At the close of Dr. Simring's testimony and following summations, Judge Freedman rendered his opinion, committing H.T.G. to the STU with a review date of six months. Judge Freedman discredited much of the testimony of Foley, especially his view that H.T.G. was not a pedophile, noting that Foley "ignored much too much in failing to diagnose pedophilia" and "twisted his opinion beyond the bounds of propriety."
Judge Freedman rejected Mack's opinion concerning causal relationship, rather than his test results. He noted that H.T.G.'s seizure disorder did not appear until three to four years after his first sexual violent incident. He pointed out that H.T.G.'s repeated pattern of behavior, including his molestation of Y.C. when a nurse was not present contrary to the consent agreement, was inconsistent with Mack's theory of causal relationship.
Judge Freedman credited Carlson's, Zeiguer's, and Simring's diagnosis of pedophilia, noting that the "record clearly" supports their diagnosis. He concluded that "[H.T.G.] suffers from a mental abnormality in the form of a paraphilia," a "mental abnormality" that clearly "predispose[s] [him] to engage" in sexually violent behavior. He found that H.T.G.'s record shows that "he would have serious difficulty controlling his sexually violent behavior," and "[h]e would be highly likely to engage in it, if he was released now, as an untreated sex offender."
On appeal, H.T.G. raises the following points:
H.T.G.'S COMMITMENT WAS ARBITRARY, UNREASONABLE AND PUNITIVE, BECAUSE THE STATE HAD CONFINED H.T.G. FOR TEN YEARS WITHOUT OFFERING OR PROVIDING TREATMENT AND NOW CONFINES H.T.G. ON A FINDING THAT HE NEEDS TREATMENT IN CONFINEMENT FOR THE SAME OFFENSE.
A. THE CIVIL COMMITMENT OF H.T.G. FOR TREATMENT OF PEDOPHILIA WAS PUNITIVE AND THEREFORE IN VIOLATION OF THE CONSTITUTIONAL GUARANTEES AGAINST EX POST FACTO LAWS AND DOUBLE JEOPARDY.
THE TRIAL JUDGE ERRED BY FINDING DR. FOLEY INCREDIBLE BASED UPON DR. FOLEY'S REFUSAL TO ACCEPT ATTORNEY GENERAL ALLEGATIONS IN THE RECORD AS TRUE FOR PURPOSES OF DIAGNOSIS.
THE COURT ERRED IN FINDING THAT THE RESPONDENT WAS HIGHLY LIKELY TO RE-OFFEND.
A. THE COURT'S DECISION WAS BASED UPON DIAGNOSIS ALONE, A DIAGNOSIS THAT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
B. THE COURT BASED ITS FINDING OF LIKELIHOOD OF RE-OFFENSE UPON H.T.G.'S ALLEGED DENIAL, CONTRARY TO GENERALLY ACCEPTED SCIENTIFIC STUDIES.
1. MITIGATION OF RISK: AGE
2. MITIGATION OF RISK: LOSS OF LICENSE
3. MITIGATION OF RISK: DETERRENCE
We conclude that H.T.G.'s appeal is without merit, not requiring extensive legal discussion. R. 2:11-3(e)(1)(A) & (E).
H.T.G.'s contention that his commitment was arbitrary, unreasonable, and punitive because he was not offered treatment at the ADTC during his confinement in state prison is belied by the record. In June 1994, prior to the entry of his guilty plea, H.T.G. was deemed eligible for treatment at the ADTC by Dr. Kenneth McNeil. When he entered his subsequent plea, he was advised by the judge that he may be re-evaluated for admission to the ADTC and that if so sentenced, he would not be subject to the usual parole rules, but would remain at the ADTC until discharged by the professional staff. When H.T.G. was clinically assessed for the STU by Zeiguer, he admitted that he opted for a prison term rather than treatment at the ADTC because of the certainty of a maximum sentence time. The decision not to undergo treatment at the ADTC was made by H.T.G., a former practicing doctor. Under those circumstances, we need not intervene. See In re E.S.T., 371 N.J. Super. 562, 577 (App. Div. 2004).
Likewise, we need not address, in detail, H.T.G.'s conclusory assertion that the SVPA is unconstitutional as violating his rights against double jeopardy because the State is using the mechanism of civil commitment for retribution and general deterrence. Instead, we need only refer to the Court's contrary decision in In re Commitment of W.Z., 173 N.J. 109 (2002); see also Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983) (an appellate court will not consider an issue which is based on mere conclusory statements by the brief writer).
In Points II and III of his brief, H.T.G. essentially asserts that here the standard enunciated in W.Z. was not established by the State. In W.Z., the Court enunciated a new standard for commitment under the SVPA and held that "the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." Id. at 133-34 (emphasis added). The Court modified our holding in In re Commitment of W.Z., 339 N.J. Super. 549 (App. Div. 2001), which predated the U.S. Supreme Court's decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed. 2d 856 (2002). We required the trial judge to find by clear and convincing evidence that the sex offender "has a propensity, inclination or tendency, to commit acts of sexual violence" and is "highly likely" to reoffend. W.Z., supra, 339 N.J. Super. at 580. The Court remanded the case to the trial judge to determine whether W.Z.'s mental condition fell within the newly enunciated standard. W.Z., supra, 173 N.J. at 134.
In Crane, supra, 534 U.S. at 413, 122 S.Ct. at 870, 151 L.Ed. 2d at 862, the Supreme Court recognized that "'inability to control behavior' will not be demonstrable with mathematical precision." Instead, there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Id. at 413, 122 S.Ct. at 870, 151 L.Ed. 2d at 862-63.]
We are satisfied, from our review of the entire record, that Judge Freedman did not error by discrediting Foley's testimony. Indeed, there was ample credible evidence to establish clearly and convincingly that H.T.G. suffers from paraphilia, as diagnosed by the State's experts, and he meets the "highly likely" to reoffend standard expressed in W.Z. Our scope of review is "extremely narrow," and we must defer to the trial court's determination unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Contrary to H.T.G.'s contentions, there was no such abuse here. We affirm on the basis of Judge Freedman's oral opinion of February 14, 2005.