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In re Civil Commitment of G.T.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF G.T.G. SVP 382-04.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 382-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 13, 2008

Before Judges Skillman and Yannotti.

G.T.G. appeals from an order entered on August 22, 2005, which found that he is a sexually violent predator requiring civil commitment pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). For the reasons that follow, we affirm.

On July 26, 1985, a twenty-one-year-old woman who we identify as D.W. was at a shopping mall in South Plainfield, New Jersey. G.T.G. approached her and inquired about a "for sale" sign in the window of her car. G.T.G. asked if he could take a test drive and D.W. agreed. D.W. drove the car and G.T.G. was in the passenger seat. He pulled a knife and demanded that D.W. continue driving. G.T.G. then stabbed D.W. in the right chest area.

D.W. indicated that, because of the stab wounds, she could not drive. G.T.G. instructed D.W. to move to the passenger seat and he drove the vehicle. G.T.G. told D.W. that she and her family would be physically harmed if she resisted. G.T.G. then directed D.W. to perform oral sex upon him while he was driving. She complied, in fear of further injury.

G.T.G. eventually drove to a baseball field in Bernards Township. He forced D.W. to exit the vehicle and took her to a nearby wooded area, where he removed her shoes, pants and underwear, and vaginally raped her. Thereafter, G.T.G. tied D.W. to a tree with her belt and told her that he would kill her if she reported the incident to the police. G.T.G. drove off in D.W.'s car, which contained her purse and $45 in cash. D.W. untied herself and stopped a passing motorist for help.

D.W. informed police of the incident. Later that evening, the police stopped G.T.G. while he was driving in D.W.'s car. He admitted the alleged offenses. He stated that he had the day off, drank "a lot" of whiskey, and took three "hits" of LSD prior to the assault. G.T.G. asserted that he believed his behavior was getting worse and he would kill someone in the future if he did not get help.

G.T.G. was arrested, taken into custody, and charged accordingly. On January 24, 1986, G.T.G. pled guilty to aggravated assault; possession of a weapon for an unlawful purpose; kidnapping; aggravated sexual assault; and robbery.

Defendant was sentenced to twenty years in a State correctional facility for kidnapping, with a ten-year period of parole ineligibility; a concurrent fifteen-year term for robbery; a concurrent ten-year term for aggravated assault; and a concurrent five-year term for possession of a weapon for an unlawful purpose. Defendant also was sentenced to a consecutive ten-year term for aggravated sexual assault, with a five-year period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel.

Defendant appealed his sentences, and the appeal was heard on our Excess Sentence Oral Argument calendar. We entered an order on April 29, 1987, which affirmed the sentences but ordered that the judgment be modified to provide that the sentence at the ADTC be served before the State prison sentence. However, due to an apparent administrative error, G.T.G. served his State prison term first, and then was transferred to the ADTC. Thereafter, the New Jersey State Parole Board granted parole, effective as of November 17, 2004.

On November 10, 2004, the Attorney General filed a petition in the Law Division seeking G.T.G.'s civil commitment pursuant to the SVPA. The court entered an order on November 17, 2004, finding that there was probable cause to believe that G.T.G. is a sexually violent predator requiring civil commitment. G.T.G. was temporarily committed at the Special Treatment Unit (STU) pending a final hearing in the matter.

Judge Serena Perretti conducted the commitment hearing on six dates beginning on June 6, 2005. The State presented testimony from Dr. Michael McAllister, Dr. Robert Carlson, Dr. Merrill Main, and Thomas Calabrese. G.T.G. presented testimony from Dr. Barbara Schwartz and Cynthia Holshue.

Judge Perretti placed her decision on the record on August 22, 2005, in which she concluded that the State had proven by clear and convincing evidence that G.T.G. was a sexually violent predator in need of civil commitment at the STU pursuant to the SVPA. The judge entered an order on August 22, 2005, which memorialized her findings. This appeal followed.

G.T.G. raises the following arguments for our consideration:

POINT I: THE ATTORNEY GENERAL DOES NOT HAVE JURISDICTION TO SEEK SVPA COMMITMENT OF AN OFFENDER WHO HAS BEEN GRANTED PAROLE.

POINT II: PRINCIPLES OF ADMINISTRATIVE COMITY AND RES JUDICATA BAR THE ATTORNEY GENERAL FROM ATEMPTING TO CIRCUMVENT THE PAROLE BOARD'S DECISION IN THIS MATTER.

POINT III: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT G.T.G. IS SUBJECT TO CIVIL COMMITMENT UNDER THE SVPA.

POINT IV: THE TRIAL COURT ERRED IN ADMITTING HEARSAY MATERIALS INTO EVIDENCE OVER THE OBJECTION OF G.T.G.

The scope of our review of orders of commitment entered 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). We accord the "utmost deference" to the trial judge's commitment determination. In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Furthermore, we defer to the trial judge's findings of facts and conclusions of law "'unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). We have carefully considered the record in light of G.T.G.'s arguments and the applicable law. We are convinced that the record provides clear and convincing support for Judge Peretti's finding that G.T.G. is a sexually violent predator in need of commitment pursuant to the SVPA. We therefore affirm the order of commitment substantially for the reasons stated by Judge Perretti in the decision that she placed on the record on August 22, 2005. R. 2:11-3(e)(1)(A). We add the following.

G.T.G. argues that the Attorney General does not have authority under the SVPA to initiate the civil commitment of an offender who has been granted parole. G.T.G. asserts that the Attorney General does not have authority to "contravene" the decision of the Parole Board. He contends that, if the Attorney General disagrees with a parole determination, he must appeal that determination to this court pursuant to Rule 2:2-3(a)(2). G.T.G. further argues that principles of administrative comity and res judicata preclude the Attorney General from "attempting to circumvent" the Parole Board's decision in this case.

These arguments are substantially the same arguments that we considered and rejected in In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 462-65 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007). There, we held that the SVPA "does not preclude the Attorney General from seeking commitment of a person who is on parole." Id. at 463. We stated that "[i]n the SVPA, the Legislature imposed no limitation on the State's parens patriae power to protect the public from the potential dangers posed by sexually violent predators." Ibid. We also held that principles of administrative comity do not require that the Attorney General defer to a parole decision of the Parole Board. Id. at 464.

G.T.G. argues that the decision in M.L.V. is not controlling because in that case the person committed had been released on parole, parole had been revoked, and the Parole Board thereafter determined to continue parole after submission of an acceptable community plan. Id. at 459-60. Although there are factual distinctions between M.L.V. and this case, the essential holding of M.L.V. applies here. G.T.G.'s arguments to the contrary are not of sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

G.T.G. also contends that the State failed to present clear and convincing evidence to support a finding that he is a sexually violent predator requiring civil commitment under the SVPA. G.T.G. asserts that his treatment reduced his risk of re-offending and the trial court should have ordered his release in accordance with his proposed discharge plan. G.T.G. further claims that the trial judge improperly rejected Dr. Schwartz's testimony.

To warrant commitment of a person pursuant to the SVPA, the State must prove by clear and convincing evidence that the individual suffers from a mental abnormality or personality disorder that affects his "ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not required. Id. at 126-27.

Rather, a showing of an impaired ability to control sexually dangerous behavior will suffice. Id. at 127. The State must establish 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.

We are satisfied from our review of the record that there is sufficient credible evidence to support Judge Peretti's finding that G.T.G. is a sexually violent predator in need of commitment at the STU for custody, care and treatment. The judge's findings of fact are amply supported by the testimony and reports of Dr. McAllister and Dr. Carlson.

We note that Dr. McAllister interviewed G.T.G. and provided a report of his psychiatric evaluation. Dr. McAllister diagnosed sexual sadism; a history of impulse disorder, not otherwise specified (NOS); a history of alcohol, cocaine, and marijuana abuse; and personality disorder, NOS. Dr. McAllister stated in his report that although G.T.G. had received sex offender treatment, it had not mitigated his risk of re-offending. He opined that G.T.G. remains "at grave risk" to re-offend sexually. In his testimony at the commitment hearing, Dr. McAllister stated that G.T.G. had the "gravest, worst risk to sexually re-offend of anyone that [he has] interviewed [at the STU] so far."

Dr. Carlson also interviewed G.T.G. and provided a report of his psychological evaluation. He diagnosed paraphilia, NOS; rule out sexual sadism; polysubstance abuse in institutional remission; and antisocial personality disorder. In his report, the doctor noted that G.T.G.'s scores on the Static-99 and MnSOST-R tests indicated a high risk of recidivism.*fn1

At the commitment hearing, Dr. Carlson testified that he was "conflicted" on the diagnosis of sexual sadism but noted that there are "elements of sexual sadism which have been present in [G.T.G.'s] past sexual history." Dr. Carlson testified that while G.T.G. has made some progress in treatment, there was a "significant threat" that he would re-offend unless confined in a secure facility.

G.T.G. maintains that the judge erred by accepting the reports and testimony of Dr. McAllister and Dr. Carlson and rejecting the views of Dr. Schwartz, who testified that it is not highly likely that G.T.G. would re-offend if discharged. We disagree.

As fact-finder, the judge had the discretion to reject some or all of the experts' testimony. Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993). We are satisfied that the judge did not abuse her discretion by finding Dr. McAllister's and Dr. Carlson's testimony to be more persuasive than that of Dr. Schwartz.

G.T.G. also contends that the judge erred by admitting into evidence certain documents containing hearsay, including the adult pre-sentence reports, victim statements, and prior psychological evaluations. The contention is without merit. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201- 02 (App. Div. 2004) (holding that treatment records may be considered by the judge in weighing the credibility of the testifying experts in an SVPA commitment hearing); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 613 (App. Div. 2003) (holding that the judge in an SVPA commitment proceeding may consider facts underlying the committee's prior offenses and pre-sentence reports when relied upon by an expert to evaluate a person's mental condition), certif. denied, 179 N.J. 312 (2004).

Furthermore, G.T.G.'s reliance upon In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 575-76 (App. Div. 2004), is misplaced. Contrary to G.T.G.'s assertions, the judge in this matter did not consider any hearsay material as substantive evidence but instead considered that material only as a basis for evaluating the experts' opinions.

We have considered the other arguments raised by G.T.G. and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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