June 25, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF P.A.C., SVP-159-01
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-159-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2008
Before Judges Skillman, Winkelstein and Yannotti.
Appellant, P.A.C., appeals from a March 23, 2005 judgment committing him to the State of New Jersey Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he challenges the court's jurisdiction, he asserts that the trial court improperly relied on hearsay, and that the State violated his freedom of speech and thought. We affirm.
Appellant was arrested in Vineland on March 12, 1999, after accessing child pornography web sites on a computer in the Vineland Public Library. In November 1999, he pleaded guilty to fourth-degree endangering the welfare of children, N.J.S.A. 2C:24-4b(4)(b).*fn1 In re Civil Commitment of P.C., 349 N.J. Super. 569, 573 (App. Div. 2002). The court imposed an eighteen-month prison term. Id. at 574. Before appellant's release, the Attorney General petitioned to have him committed pursuant to the SVPA. Ibid. On February 27, 2001, the trial judge issued a temporary commitment order authorizing his transfer to the STU.
Appellant filed a motion to dismiss the State's petition and the temporary commitment order as violating his 1999 plea agreement. Ibid. We granted interlocutory review and affirmed. Id. at 582.
Following a final commitment hearing, in January 2003 the court committed appellant to the STU. Appellant appealed and we reversed. In re Civil Commitment of P.A.C., No. A-2693-02 (App. Div. Nov. 17, 2004). We concluded that the trial judge relied too heavily upon hearsay contained in reports and documents prepared by experts who did not testify at the hearing, and we remanded for a new commitment hearing. After a four-day hearing, Judge Serena J. Perretti found that appellant is a sexually violent predator in need of involuntary civil commitment, and committed him to the STU.
In June 1981, at age seventeen, appellant was arrested in Philadelphia; he was charged with and pleaded guilty to criminal solicitation to commit involuntary deviate sexual intercourse, for which he received probation. In re P.C., supra, 349 N.J. Super. at 572. In August 1987, he was arrested in Pennsylvania for "attempting to coerce fellatio" on a fifteen-year-old boy. Ibid. He pleaded guilty to one count of corruption of a minor, and he received three years probation. Ibid.
In September 1987, appellant was again arrested in Philadelphia. Ibid. He pleaded guilty to two counts of corrupting a minor and two counts of soliciting involuntary deviate sexual intercourse from two boys, ages eleven and thirteen, and received an eleven and one-half to twenty-three-month prison term, to be followed by three years probation. Ibid.
In February 1989, he was arrested in Pennsylvania for the sexual assault of a fifteen-year-old boy. Ibid. At the bench trial, the victim testified that appellant "grabbed him by the neck and told him he was taking him to the railroad tracks to force him to submit to oral sex." Ibid. Appellant testified that he did not touch the victim. The court's factual findings are not available, but it convicted appellant of attempted involuntary deviate sexual intercourse, corruption of a minor, and assault. Ibid. The court imposed a ten-year prison term with a four-year mandatory minimum.
When appellant was released in February 1999, he was thirty-five years old. He went to live with his father in Vineland. At the Vineland Public Library, appellant accessed child pornography websites on a library computer. A librarian warned him not to view that material, but the next day he returned to the library and did so again. Library personnel reported appellant to the police. Id. at 573.
Pursuant to a search warrant, on March 9, 1999, police searched appellant's father's home, where they found computer discs containing photographs of nude boys under the age of eighteen. Ibid. Appellant was charged with two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4b(4)(a) and (b). Ibid. He pleaded guilty to one count of fourth-degree endangering the welfare of children. Although when appellant was evaluated at the Adult Diagnostic Treatment Center (ADTC), he was deemed eligible for sentencing to ADTC under sex offender laws, he was sentenced to an eighteen-month prison term because he refused treatment at ADTC. Id. at 573-74.
At the remand hearing before Judge Perretti, the State presented the testimony of Dr. Luis Zeiguer, a psychiatrist. He had interviewed appellant on three occasions, twice in 2002 and again in March 2005. He testified that in reaching his conclusions, he did not rely on other people's diagnoses or opinions. He diagnosed appellant with paraphilia, not otherwise specified; and with personality disorder, not otherwise specified, with narcissistic and antisocial components.
Dr. Zeiguer testified that appellant has a high risk of reoffending; that appellant does not have insight into his sexual offending history and behavior; and that appellant's treating therapist is under the impression that appellant considers sex with adolescent boys to be moral but illegal. Appellant had a score of eight on the Static-99 test, an actuarial study, which the doctor said puts him at the highest risk to reoffend. The doctor opined that appellant has "serious difficulty controlling his sexual offending behavior" because he has not been deterred by punishment. He found that appellant "appears to be full of short-term gratification," and has not benefited from therapy in a way that would "mediate . . . his risk."
Dr. Merrill Main, a psychologist at the ADTC, examined appellant on February 18, 2000, as part of his presentence evaluation. Dr. Main administered a battery of tests. He was concerned that appellant "was distrusting of authority figures, which might compromise his ability to benefit from treatment."
Dr. Eleni Marcantonis, a member of the Treatment Progress Review Committee (TPRC) at the STU, testified that the TPRC did not do an independent diagnostic assessment of appellant. The TPRC recommended Phase II treatment for him. Appellant had not met the treatment criteria for that plan, in that he did not have a relapse prevention plan, and had not written his autobiography or sexual offense history. The TPRC was concerned with appellant's comments, such as that "he had sex with six or seven underaged boys before turning eighteen," and that he understood it was illegal but did not think there was anything wrong with it.
Dr. Timothy Foley, testifying on appellant's behalf, diagnosed him with avoidant personality disorder. He based his opinion on an examination of appellant's "sexual misconduct across the board," which the doctor described as "primarily solicitation where he goes up to strangers, and he asks them basically [']do you want to have sex with me.['] He gets a ready response, and obviously, if he asks enough people, a certain percentage of them . . . will say yes."
Dr. Foley opined that treatment in the Pennsylvania prison system helped appellant. He explained that, based on the literature, he did not diagnose appellant with paraphilia because, "[it is] . . . very common for adult homosexual and heterosexual males to be primarily attracted to adolescents." Dr. Foley testified that appellant's score on the Static-99 falls within a group that statistically reoffends at a high rate. Nevertheless, he opined that appellant could be released to return to Pennsylvania without being highly likely to commit further crimes of sexual violence.
Judge Perretti concluded that the State had shown by clear and convincing evidence "that [appellant] has an abnormal mental condition and personality disorder that adversely impact his volitional, cognitive and emotional capacities in such a way as to predispose him to commit sexually violent acts." She observed that appellant "still believes adamantly that his conduct is all right. Based upon his own statement of his set ideas, . . . [appellant] presents a grave risk to reoffend." She also stated that appellant "simply cannot understand what's wrong with having sex with underage children. He does not think he did anything wrong, and this continues to be his mindset."
Judge Perretti described the evidence upon which she relied. She referred to this court's prior conclusion that appellant's 1989 Pennsylvania conviction qualified as a predicate offense. She described appellant's criminal history, using the Pennsylvania judgments of conviction, the "background investigation report," and the "PSI for the Vineland offense."
The court noted that in the presentence investigation report, appellant admitted that he "used . . . computers to access images of nude males but he indicated that all of the males were over age eighteen." She also noted that when entering his guilty plea, appellant stated: "I used the public library's internet access to call up images, pictures of guys in the nude. Some of the pictures were of males under the age of eighteen." When asked his purpose for accessing those images, appellant said it was for "sexual gratification."
The court relied on the report and testimony of Dr. Main, who performed psychological tests on appellant at the ADTC. The test results showed that appellant "has poor boundaries and difficulty controlling his impulses." The court relied on Dr. Main's testimony regarding his interview of appellant, where appellant "described his actions [at the Vineland library] substantially as reported," and that he admitted that he "actually like[s] guys who are underage." The court further relied on appellant's responses in a questionnaire, in which he acknowledged a belief that "children are not harmed by being sexually molested." The court noted that appellant "endorses statements such as [']sexual activity with children can help the child learn about sex, society makes a much bigger deal out of sexual activity with children than it really is,['] and [']I think the main thing wrong with sexual activity with children is that it is against the law.[']" The court further relied upon Dr. Main's statement in his report that, during his interview with appellant, appellant admitted that he "continued to struggle with being sexually aroused by underage males." The court accepted Dr. Main's conclusion that appellant is "a repetitive and compulsive sex offender."
The court explained its reliance on the TPRC report, which indicated that appellant said that he "had six or seven underage boys but did not consider them victims." Judge Perretti referred to notes in the treatment team report, including a note that appellant "does not think it's wrong to engage in sexual activity with a minor," and that "[h]e believes the minor is capable of consent, and just because it's illegal does not mean it's unethical."
The court considered Dr. Zeiguer's report, acknowledging that Dr. Zeiguer "reviewed other documents which contained inadmissible hearsay"; however, the court did not rely on these "as substantive proof but rather merely as the basis for Dr. Zeiguer's opinions." The court found that appellant told Dr. Zeiguer that "[appellant] had possibly up to 200 partners, but as an adult, he approximately practiced oral sex on only thirty underage males"; and that he "feels he would reoffend if 'aggressively pursued by a fifteen-year-old.'"
Judge Perretti found that appellant has "acknowledged his attraction to young boys," and that he "acts out on this attraction and sees nothing wrong with it." The court rejected appellant's testimony that he was not looking at child pornography in the Vineland Public Library, but rather was looking at indexes. The judge pointed out that at his sentencing, appellant "acknowledged getting child porn for his own sexual gratification and acknowledged doing this at the Vineland Library."
The court found that Dr. Foley rationalized appellant's conduct. Dr. Foley "did not appear . . . to deal with the fact that [appellant] is not merely attracted to post-pubescent children, but acts out sexually with them in the strong belief that there's nothing wrong with acting out sexually with them."
Against this factual background, we first address appellant's argument that New Jersey does not have jurisdiction to commit him under the SVPA. That argument is without merit.
"[J]urisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of 'traditional notions of fair play and substantial justice.'" Burnham v. Superior Court of California, 495 U.S. 604, 619, 110 S.Ct. 2105, 2115, 109 L.Ed. 2d 631, 645 (1990). "[A] state court's assertion of personal jurisdiction does not violate the Due Process Clause if the defendant has 'certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 65 (2000) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945)).
These criteria were satisfied here. Appellant was present in New Jersey when he committed the act that led to his 1999 conviction for fourth-degree endangering the welfare of children. He was residing with his father in Vineland. Even though he was there for only two to three weeks, his presence and actions constitute sufficient minimum contacts for New Jersey to obtain jurisdiction over him.
Appellant's primary jurisdictional argument is that he was not a resident of this State at the time he committed the predicate act, a 1989 conviction in Pennsylvania for attempted involuntary deviate sexual intercourse. It is not necessary, however, that the predicate act have been committed in this State. The Legislature has determined that such an offense need not have occurred in this State, so long as it has "substantially the same elements as any offense enumerated." N.J.S.A. 30:4-27.26(a); see also In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 44 (App. Div.) (civil commitment of person upheld when that person had two prior convictions in the State of New York qualifying as predicate offenses for SVPA commitment), certif. denied, 192 N.J. 296 (2007). As we have previously ruled, the 1989 offense qualified as "an enumerated sexually violent offense pursuant to the SVPA." In re P.C., supra, 349 N.J. Super. at 575. Thus, New Jersey is not deprived of jurisdiction simply because appellant committed the predicate offense in Pennsylvania.
Appellant's next point is that the trial court erred by relying substantially upon hearsay in arriving at its decision. He asserts that the court erred in relying upon police investigation and arrest reports regarding the incident leading to his 1989 conviction. He claims that the court relied on them substantively, finding that appellant had "physically touched the complainant during the 1989 Pennsylvania crime," and that "[appellant's] denial of the accusation that he had used force was 'again shown to be minimizing the force used in the predicate offense.'" Appellant further argues that that the court improperly incorporated the presentence report for the 1999 Vineland offense into its findings of fact. We reject these arguments. We are not convinced that the manner in which the court utilized the hearsay documents warrants a reversal of the court's commitment order.
Courts may order the involuntary civil commitment of a person under the SVPA when the "State has proven 'by clear and convincing evidence that the person needs continued involuntary civil commitment as a sexually violent predator.'" In re Civil Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div. 2007) (quoting N.J.S.A. 30:4-27.32a). A "sexually violent predator" is "a person who has been convicted . . . for commission 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. To prove that commitment is necessary, 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." In re Civil Commitment of W.Z., 173 N.J. 109, 132, 133-34 (2002).
In evaluating the evidence, "a trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "[A]n appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
In commitment hearings, "official reports, including police reports, [may be] properly considered and used by the court as relevant background information and [may be] properly considered by . . . experts, although the included hearsay may not be admitted as substantive information." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 94-95 (App. Div.), certif. granted, 193 N.J. 222 (2007). "[S]ignificant state action, such as SVPA commitment, cannot and should not be based on unproven allegations of misconduct," particularly those not subject to cross-examination. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div.), certif. denied, 185 N.J. 393 (2005).
Here, appellant essentially argues that the court erroneously used the police investigation and arrest report of 1989, and the presentence report of 1999, in making a substantive finding that he physically touched the victim of the 1989 crime for which he was convicted. To support his argument, he points to the following language used by the trial court in its decision:
[I]nvestigative reports may be relied upon by the Court in this context for the facts therein which provide the basis for the convictions. I am resorting to the investigation report as establishing the facts which are the background of those Pennsylvania convictions.
In addition . . . given the fifteen-year-old victim's version of the sex offenses, the conviction for simple assault arose from [the victim's] allegation that [appellant] had come up to him, grabbed him by the back of the neck; thereafter, the youngster ran away.
He also challenges the court's following statement: "There is a note of December the 12th, in which [appellant] is again shown to be minimizing the force used in the predicate offense."
We are not convinced by appellant's arguments. The court was using the investigation, arrest and presentence reports as background to appellant's criminal sexual history. Judge Perretti was doing no more than explaining appellant's criminal background, which included the 1989 conviction.
That said, the fact is that appellant was convicted in Pennsylvania of attempted involuntary deviate sexual intercourse. Whether force was used in the commission of the 1989 offense was not essential to the conclusion that the offense qualified as a predicate offense to the SVPA.
As to the December 12 note, the court was simply paraphrasing another exhibit in which doctors were describing appellant's treatment plan. This observation was not a specific finding by Judge Perretti as to the amount of force used by appellant in the 1989 crime.
Appellant also argues that the trial court utilized the 1999 presentence report by incorporating "the declarations in the document as it made findings on the detailed facts of the New Jersey pornography offense." Judge Perretti stated:
Petitioner's Exhibit 3 . . . is the Vineland JOC for endangering the welfare of a child by pornographic photography in violation of [N.J.S.A. 2C:24-4b(4)(b)]. The background of that case is derived from the presentence investigation report, P-3.
The police observed the respondent seating himself at a computer terminal in the Vineland Public Library where he was observed to access numerous website[s] which depicted young nude male subjects as well as sites labeled masturbation. The official offense circumstances are detailed in Petitioner's Exhibit 3 which this Court is using as the background for the conviction.
According to [appellant], in this presentence investigation report, he used the computers to access images of nude males but he indicated that all of the males were over age eighteen. He stated that he was looking for images of naked men, not young boys.
When he entered his plea of guilty, . . . he told the Court . . .
"I used the public library's internet access to call up images, pictures of guys in the nude. Some of the pictures were of males under the age of eighteen."
Again, Judge Perretti was explaining the background behind plaintiff's 1999 conviction. She acknowledged both appellant's statement in the presentence report, that he did not access images of underage males, and his statement when he entered his guilty plea, that he did access images of underage males. The court's use of these documents in this manner was not an abuse of discretion.
Appellant further argues that the trial court improperly relied on the testimony of Dr. Zeiguer, who appellant claims relied solely upon hearsay in making his "critical judgments." We do not find that the weight the court attributed to Dr. Zeiguer's testimony was an abuse of discretion.
"A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition." In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). "[P]resentence investigation reports are also admissible since they are the type of evidence reasonably [relied] on by psychiatrists in formulating an opinion as to an individual's mental condition." In re J.M.B., supra, 395 N.J. Super. at 94; see also In re A.E.F., supra, 377 N.J. Super. at 490. This is true for other official reports, including police reports. In re J.M.B., supra, 395 N.J. Super. at 94-95.
Here, the trial court acknowledged that Dr. Zeiguer "reviewed other documents which contained inadmissible hearsay, [but] the Court [did] not rely on these as substantive proof, but rather merely as the basis for Dr. Zeiguer's opinions." The court in fact said that Dr. Zeiguer's opinion was helpful, but not necessary.
The trial court did rely on Dr. Zeiguer's "two substantial interviews with [appellant]," and appellant's own statements that supported Dr. Zeiguer's diagnosis. In 2002, he told Dr. Zeiguer that he "had possibly up to 200 partners, but as an adult, he approximately practiced oral sex on only thirty underage males." He also told Dr. Zeiguer about an incident involving a thirteen-year-old, and that he "could be vulnerable to re-offend 'if aggressively pursued by a 15 year old.'" Thus, Dr. Zeiguer's opinion was not only based upon the accounts in the reports he reviewed, but also on his interviews with appellant. His opinion was further based on actuarial and psychological test results.
Finally, we turn to appellant's argument that the court used appellant's moral beliefs as a basis for its ruling, violating his constitutional rights. We find no merit to that argument. The court did not order appellant's civil commitment based on appellant's moral beliefs. Rather, it did so because appellant has a documented history of sexual offenses, and he suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined to a secure facility for treatment. See N.J.S.A. 30:4-27.26. Appellant is not being committed for his beliefs, but rather for his conduct and his high risk of reoffense.
Our scope of review of civil commitment judgments 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 defer to the reviewing judge's "determination of the appropriate balancing of societal interest and individual liberty." In re J.M.B., supra, 395 N.J. Super. at 89-90. In doing so, we find no reason to disturb Judge Perretti's order of commitment.