November 15, 2007
IN THE MATTER OF THE CIVIL COMMITMENT OF A.Z.L.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-348-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Axelrad and Sapp-Peterson.
A.Z.L. appeals from a judgment entered on May 14, 2004, following an initial hearing, which determined him to be a Sexually Violent Predator in need of involuntary civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and committed him to the State of New Jersey Special Treatment Unit (STU), with a review to occur in one year.*fn1
Forty-five year old A.Z.L. has a history of sexual offenses beginning as a juvenile. In 1978, at age sixteen, he was charged with assault with intent to rape, and received a suspended sentence to Yardville after the resulting adjudication for assault and battery. On June 6, 1981, at nineteen years of age, A.Z.L. attempted to force his eleven-year-old sister onto a mattress in a secluded area under an old railroad bridge to sexually assault her. He was charged as an adult with attempted aggravated sexual assault and endangering the welfare of a child. He pled guilty to the third-degree child endangerment charge and received a sentence of 164 days and one year of probation.
In 1983, at twenty-one years of age, A.Z.L. approached a twenty-five-year-old woman at a tavern and asked her to go for a walk. They walked to his house and, once inside, he grabbed her by her arms and forced her upstairs onto a mattress where she claimed he raped her. Medical reports indicated the victim was penetrated vaginally and anally. A.Z.L. claimed the victim was a prostitute who became angry when he told her that he had no money. He was indicted for aggravated sexual assault, criminal restraint, and terroristic threats, and pled guilty to second-degree aggravated sexual assault. He received a five-year custodial term with two years of parole ineligibility.
On July 29, 1988, less than four months after being paroled, A.Z.L. laid behind his paramour's ten-year-old daughter while she slept on a mattress in the living room, pulled down her panties, rubbed Vaseline jelly on her buttocks, and attempted to penetrate her anus and vagina with his penis. He was indicted for first-degree aggravated sexual assault, sexual assault and endangering the welfare of a child. He initially disputed the child's version of the assault, claiming he was drunk and high, and thought it was the child's mother on the mattress. A.Z.L. then pled guilty to first-degree aggravated sexual assault, and on August 6, 1990 was sentenced to a twelve-year custodial term with a five-year period of parole ineligibility.
On May 26, 1996, about a month after being paroled, A.Z.L. approached a nineteen-year-old female who was using a telephone booth and told her he was a police officer. He began checking her for drugs by feeling her body, including her breasts, and tried to pull down her panties from underneath her dress. When she began to scream, he covered her mouth, threw her to the ground, told her he had a gun, and threatened her. A neighbor came to the victim's rescue. A.Z.L. became violent and had to be physically restrained after police apprehended him two blocks away from the scene as he was attempting to hide in the bushes. Based on these events, A.Z.L. was indicted for attempted sexual assault, criminal sexual contact, aggravated assault, terroristic threats, resisting arrest, aggravated assault on a law enforcement officer, and criminal mischief. A.Z.L. pled guilty to second-degree attempted sexual assault and third-degree terroristic threats. On July 28, 1997, he was sentenced to ten years at the Adult Diagnostic and Treatment Center (ADTC), with five years of parole ineligibility. This was his fourth adult sex-related conviction.
While incarcerated at the ADTC, A.Z.L. did very poorly in treatment. He was found guilty of a variety of institutional infractions and was placed in the restricted activities program because he was observed stalking female staff members. The civil commitment proceeding was initiated on November 19, 2003, when A.Z.L. was about to be released from the ADTC for this predicate offense.
At the commitment hearing, Dr. Luis Zeiguer, a psychiatrist, and Dr. Robert Carlson, a psychologist, testified for the State; A.Z.L. presented no experts. Dr. Zeiguer diagnosed A.Z.L. with pedophilia, females nonexclusive, paraphilia non-consent, because he forces himself sexually on adult women as well as prepubescent girls. The psychiatrist also found A.Z.L. to have a severe personality disorder and to be antisocial, preferring to use violence in his sexual acts. Dr. Zeiguer testified that A.Z.L. explained each conviction away by claiming mistakes in the record; police conspiracies against him; lack of memory of the incidents because an alternative part of his personality commanded his actions; he was under the influence of drugs and alcohol, seizures and blackouts; and the events never actually took place. The expert also noted that A.Z.L. had been out in society during his adult life for a total of less than a year and continuously relapsed in committing new offenses, and even while at the most highly structured environment of the ADTC he had trouble controlling his behavior. Dr. Zeiguer was particularly concerned with A.Z.L.'s absence of remorse or empathy, and concluded that A.Z.L. was highly dangerous and that his risk to sexually re-offend was "enormous" if not secured in a treatment facility.
Based on his review of the records and interview with A.Z.L., Dr. Carlson also diagnosed him with pedophilia, paraphilia NOS to capture the non-consenting nature of some of the attacks, and antisocial personality disorder. He noted several significant aspects of A.Z.L.'s sexual offense history, including: (1) the duration of time throughout his life, from adolescence through adulthood, that sexual misconduct occurred; (2) the different depictions of the events of sexual misconduct to different individuals; (3) the range of ages of females targeted; and (4) that familial and non-familial individuals were targeted. His history suggested "a chronic problem with impulsiveness, a chronic problem with behavioral control, a chronic problem with control of sexual impulses and a certain sense of entitlement." Dr. Carlson also noted, as did Dr. Zeiguer, A.Z.L.'s self-acknowledged significant substance abuse problem as a contributing factor to his actions. Additionally, considering A.Z.L.'s performance on the objective tests, Dr. Carlson concluded that A.Z.L.'s disorders affected his ability to control his sexually offensive behavior and characterized as "significant" appellant's risk of recidivism if not confined to a treatment facility.
Judge Freedman found the State established that A.Z.L. was convicted of a sexually violent offense as defined by the SVPA. He further found that A.Z.L. had a "chronic history of sexually aggressive behavior," and demonstrated a pattern of impulsivity and inability to control his sexual impulses. Judge Freedman concluded that A.Z.L. "is a sexually dangerous person, who requires a restrictive and supervised environment." The court also found, as the experts recognized, that although A.Z.L. had been incarcerated over the years more than he had been released, prison had not served as a deterrent. Judge Freedman further commented on A.Z.L.'s tendency to minimize his conduct and deny his offenses.
After considering the expert testimony in evidence, Judge Freedman found, based on clear and convincing evidence, that A.Z.L. was predisposed to commit acts of serious sexual violence and, if released, he "would be more than highly likely to engage in acts of sexual violence within the reasonably foreseeable future." Accordingly, the court concluded that A.Z.L. met the criteria for involuntary commitment as a sexually violent predator and ordered his commitment to the STU.
A.Z.L. asserts the following arguments on appeal:
THE APPLICABLE CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF FOR COMMITMENT UNDER THE SVPA WAS NOT MET BY THE STATE REGARDING ANY OF THE REQUIRED ELEMENTS JUSTIFYING COMMITMENT UNDER THE ACT.
THE COURT'S DECISION, AND THE TESTIFYING EXPERTS' OPINIONS, WERE BASED MAINLY UPON THE REPORTS AND RECORDS OF NON-TESTIFYING EXPERTS, AND THOSE NON-TESTIFYING EXPERTS' REPORTS CONTAINED COMPLEX DIAGNOSES AND OPINIONS AND UNVERIFIED FACTS, WHICH SUPPORTED THE TESTIFYING EXPERTS' OPINIONS AS TO THE DEFENDANT'S LIKELIHOOD TO REOFFEND.
We are not persuaded by these arguments and affirm substantially for the reasons articulated by Judge Freedman in his oral opinion following the plenary hearing on May 14, 2004. We add the following comments.
The SVPA authorizes involuntary commitment of a sexually violent predator, defined as a person who has been convicted . . . of a sexually violent offense . . . and 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.]
An order for a commitment under the SVPA must be based on "clear and convincing evidence that an individual . . . has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see also In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).
In reviewing a judgment for a commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'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)); see also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "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).
We are satisfied the order of commitment is adequately supported by the record and consistent with the controlling legal principles outlined above. Moreover, we are satisfied the hearsay evidence relied upon by the experts complies with N.J.R.E. 703 and the case law. We have previously recognized that documents containing inadmissible hearsay that expert witnesses have relied upon in forming their opinions may be admitted into evidence at a commitment hearing under the SVPA for the limited purpose of allowing the court to consider the factual materials considered by those witnesses. See, e.g., In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 484-89 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The record does not support A.Z.L.'s claim of procedural infirmities by the experts' or court's reference to hearsay documents or information, or that the opinions of the non-testifying experts were "bootstrapped into evidence through the testimony of the testifying experts." In re Commitment of E.S.T., supra, 371 N.J. Super. at 575. Each expert independently evaluated A.Z.L. and relied upon the other documents in formulating and corroborating their opinions. Further, none of the diagnoses they considered were of a complex nature.