July 21, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF T.J.G., SVP-402-05
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-402-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 1, 2008
Before Judges Skillman and Winkelstein.
This is an appeal from an order of civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
In 1986, the appellant, T.J.G., pled guilty to a first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3). This sexual assault was committed upon an adult female by breaking into her apartment at 6 a.m. and threatening to kill her if she refused to submit. Appellant was sentenced to a fifteen-year term and served nearly ten years imprisonment for this offense.
In 2000, appellant pled guilty to two counts of sexual assault, in violation of N.J.S.A. 2C:14-2b. These sexual assaults were committed by appellant exposing himself and masturbating in front of two young girls (a ten-year-old and a nine-year-old), asking them to lower their pants and also asking one of them to touch his penis. At his interview at the Adult Diagnostic and Treatment Center (ADTC) following the commission of these offenses, appellant stated: "I want to come here to seriously get help." Based on this interview, appellant's prior conviction for aggravated sexual assault, and the psychological test results, the ADTC examiner concluded that appellant was a "repetitive and compulsive" sex offender who was eligible for sentencing to the ADTC for "specialized sex offender therapy." The sentencing court accepted this recommendation and imposed concurrent seven-year terms of imprisonment, with five years of parole ineligibility, for the sexual assaults, to be served at the ADTC.
The ADTC termination report prepared shortly before expiration of this term of imprisonment stated that appellant's "progress in treatment has been mediocre." The report also stated that psychological testing of appellant had "yielded scores that suggest [appellant] is currently at a high risk to sexually re-offend." Similarly, the ADTC psychiatric termination report concluded:
Based upon the actuarial instruments, he falls into a high risk category for sexual recidivism. I see no reason to suggest that his risk for sexual re-offense is lower than is suggested by the actuarials. While his history of sexual offending does not have as clear a pattern as many sex offenders, his antisocial tendencies seem stronger than most and, in my opinion, remain quite active despite the treatment he has been afforded at ADTC.
. . . I recommend his referral to the STU for further evaluation, care and treatment.
Thereafter, two psychiatrists executed clinical certificates identifying appellant as a sexually violent predator, and based on those certificates, the State filed a petition for appellant's commitment under the SVPA. As a result, appellant was temporarily committed to the Special Treatment Unit (STU) pending an initial commitment hearing.
A two-day initial commitment hearing was conducted in June 2006. The only witnesses at the hearing were Dr. Pogos Voskanian, a psychiatrist, who concluded that appellant satisfied the criteria for commitment under the SVPA, and Dr. Robert Carlson, a psychologist at the STU, who concluded that appellant does not qualify for commitment under the SVPA. Based on this testimony and the exhibits presented at the hearing, the trial court concluded by clear and convincing evidence that [appellant] does suffer from a mental abnormality in the form of paraphilia --paraphilias on Axis-1 in the form of a paraphilia N.O.S. and -- and pedophililc arousal, that he also has drug and alcohol problems, and that he has a personality disorder, be it anti-social personality disorder or a personality disorder N.O.S. with anti-social traits, . . . [a]nd individually and in conjunction, they affect him in all three areas, and that they clearly predispose him to engage in acts of sexual violence.
The court further concluded "based on Dr. Voskanian's testimony that [appellant] would be a high risk and would have serious difficulty in controlling his sexually violent behavior if he were . . . released, and that it would happen within the reasonably foreseeable future if he was released." Accordingly, the court granted the State's petition for the appellant's initial commitment.
On appeal, appellant presents the following arguments:
I. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR. (U.S. Const. Amend. XIV; N.J. Const., (1947) Art. I, Par. 1) (Partially Raised Below).
A. The State failed to proffer the testimony of a treating psychiatrist (Not Raised Below).
B. The State's proofs were insufficient as a matter of law.
C. The State failed to provide clear and convincing evidence of a present serious difficulty in controlling sexually violent behavior.
II. THE HEARING COURT'S DECISION WAS NOT BASED ON CLEAR AND CONVINCING EVIDENCE (Not Raised Below).
III. THE TERMS AND IMPLEMENTATION OF NEW JERSEY'S SVPA DENIED APPELLANT'S RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS, AS WELL AS EQUAL PROTECTION AND CONFRONTATION (U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1, Par. 1) (Not Raised Below).
A. Departures from and punitive implementation of the Act.
B. The absence of the right to trial by jury and burden of proof beyond a reasonable doubt in our SVPA cannot withstand constitutional scrutiny due to the statute's contents and implementation (Not Raised Below).
We reject the arguments presented under Points I and II of appellant's brief and affirm the order of commitment under the SVPA substantially for the reasons set forth in Judge Freedman's comprehensive oral opinion of June 26, 2006. We add that the argument presented under Point I(A) of appellant's brief was rejected in In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 24-26 (App. Div.), certif. denied, 188 N.J. 492 (2006). We adhere to the analysis of N.J.S.A. 30:4-27.30(b) set forth in A.H.B. Despite appellant's attack upon Dr. Voskanian's testimony, we are satisfied that it was within the trial court's purview to accept Dr. Voskanian's opinions and that those opinions, together with the other evidence in the record, including the results of the psychological testing of appellant, provide adequate support for the commitment order.
Under Point II of his brief, appellant presents a series of constitutional arguments. Most of those arguments are directed at the constitutionality of the SVPA, which our Supreme Court upheld in In re Commitment of W.Z., 173 N.J. 109, 125-33 (2002). Appellant's arguments regarding the constitutionality of the SVPA that were not addressed in W.Z., including that the SVPA does not afford a potential committee a right to trial by jury or require the State to establish the grounds of commitment beyond a reasonable doubt, were rejected by us in In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004) and In re Commitment of G.G.N., 372 N.J. Super. 42, 46 (App. Div. 2004), and do not warrant any additional discussion in this opinion. Appellant also argues that the initial commitment hearing violated his rights to procedural due process because the hearing was not held until eleven months after his temporary commitment. However, appellant did not file a motion or otherwise seek relief in the trial court based on this delay in holding the commitment hearing. Consequently, there is no factual record regarding the reasons for this delay or its impact upon appellant, nor any findings by the trial court pertinent to appellant's claim. Therefore, the claim is not properly before us on appeal. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Finally, we reject appellant's attack upon the fairness and impartiality of the trial judge as clearly without merit. R. 2:11-3(e)(1)(E).
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