On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-223-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Lyons.
R.M.W. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial 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. 30:4-27.34(a). He appeals from an order of February 5, 2007, entered after the annual review required by N.J.S.A. 30:4-37.35. That order continued his commitment and provided that his next annual review shall be conducted on January 21, 2008. Oral argument on this appeal was presented on October 31, 2007.
R.M.W. contends that the evidence was inadequate to support his continued commitment. He also contends that the court erred in denying his pre-hearing motions; that the burden of proof should not be clear and convincing but beyond a reasonable doubt; that his commitment violates the Ex Post Facto Clause of the United States Constitution and that hearsay was impermissibly utilized as substantive evidence.*fn1 We affirm substantially for the reasons stated by Judge Perretti in her comprehensive oral opinion of February 5, 2007.
R.M.W.'s predicate offenses are detailed in this court's decision affirming his commitment pursuant to the SVPA. In re Civil Commitment of R.M.W., No. A-6243-01 (App. Div. Nov. 29, 2004) (slip op. at 2-7). R.M.W. had eighteen convictions, three were related to sexual conduct: a 1978 incident led a jury to convict him of lewdness and atrocious assault and battery; a 1988 incident led him to plead guilty to second-degree sexual assault by force or coercion; a 1995 incident led him to plead guilty to criminal restraint of a woman whom he held while exposing himself. Id. at 3-5. In our opinion affirming R.M.W.'s continued commitment, we outlined the legal principles which permit continued confinement of sexually violent offenders, as well as the standard for review of such continued commitment. In re Civil Commitment of R.M.W., No. A-2477-05 (App. Div. Dec. 4, 2006) (slip op. at 2-4).
Our review of commitments pursuant to the SVPA is narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). This record shows no such abuse with respect to the order under review. It is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).
R.M.W. is now sixty-two years of age. His argument that there was error in denying his pre-hearing motions for a jury trial and a N.J.R.E. 104(a) hearing is without merit. It is well settled that he is not entitled to a jury trial. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606-07 (App. Div. 2003). R.M.W.'s argument that a N.J.R.E. 104(a) hearing concerning the State's experts' reports was required pursuant to Frye is equally without merit. Counsel argued that the experts' opinions on behalf of the State were scientifically unreliable because they relied upon hearsay in coming to their evaluations. However, counsel provided no scientific basis whatsoever for that position. The trial court rightfully rejected it. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Harvey, 151 N.J. 117 (1997).
In re Commitment of W.Z., 173 N.J. 109, 120 (2002), clearly sets forth that the burden of proof in civil commitment cases of sexually violent offenders is clear and convincing. Civil commitment statutes such as the SVPA have been held not violative of the prohibition of ex post facto laws. See Kansas v. Hendricks, 521 U.S. 346, 117, S.Ct. 2072, 138 L.Ed. 2d 501 (1997).
The trial court clearly adhered to the admonition that impermissible hearsay is not to be used as substantive evidence by the court as the trier of fact although it may be used by an expert in formulating his or her diagnosis if that hearsay is something that is regularly relied upon by an expert in formulating his or her diagnosis. See In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. den., 179 N.J. 312 (2004). The trial court repeatedly referred, on the record, to the fact that as the trier of fact it would not accept any impermissible hearsay used in any evaluation by an expert as substantive evidence.
The State presented testimony from Doctors Gilman and Carlson. Dr. Gilman opined that R.M.W. continues to be at high risk to sexually reoffend. The doctor noted that he "takes no responsibility for his actions, does not acknowledge his role in his sexual offending, and has made little effort to partake of treatment as a method to decrease his sexually reoffending risk." The doctor specifically testified that R.M.W. shows no empathy or remorse and that his history, together with his lack of treatment, results in an evaluation that he is still at high risk. The doctor came to that conclusion even after factoring in R.M.W.'s age and present physical condition. The doctor concluded that those factors did not reduce the risk in any substantial fashion. Dr. Carlson also concurred with this assessment.
The trial court certainly had sufficient credible evidence presented to it to conclude that the State had established by clear and convincing proof that R.M.W. continues to be a sexually violent predator and that all of the criteria of the statute had been met. The court correctly focused on the long anti-social history of R.M.W.; the violent sexual acts perpetrated by R.M.W.; his alcohol abuse, which exacerbates his anti-social behavior; his failure to participate in any treatment for an extended period of time, and his recent behavior where he ...