July 31, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF J.B. SVP-424-06.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. SVP-424-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2008
Before Judges Wefing and Collester.
J.B. appeals from a judgment entered by the trial court on November 1, 2006, committing him to the Special Treatment Unit for care and treatment as a sexually violent predator. After reviewing the record in light of the contentions advanced on appeal, we affirm.
J.B. has three convictions for sexual offenses. In 1995 he was convicted of two counts of sexual assault, which involved separate incidents upon separate victims. The second assault occurred several days after J.B. was released on bail for the first assault. Following his conviction, J.B. was sentenced to serve five years at the Adult Diagnostic and Treatment Center (ADTC). The final report prepared in connection with his release from the ADTC indicated he had made little progress in treatment and was a "high risk for reoffense and poor reintegration back into the community."
After he was released from the ADTC, he did commit a subsequent assault, which resulted in his conviction for criminal sexual contact, for which he was sentenced to eighteen months in prison. While incarcerated for that offense, he was diagnosed with antisocial personality disorder and impulse control disorder; he was recommended for referral for commitment as a sexually violent predator.
In addition to these three convictions, J.B. was charged with a number of other sexual offenses. In one instance, the charge was no billed. In another, he was acquitted at trial. He was also charged with failure to notify regarding a change of address, as he was required to do in light of his earlier convictions for sexual assault. He also had incurred charges of aggravated assault and fighting or baiting animals.
The State presented two witnesses in support of its petition that J.B. be committed as a sexually violent predator, Evan Feibusch, M.D., a psychiatrist, and Natalie Barone, Psy.D., a psychologist. Both witnesses scored J.B. as 6 on the Static 99, which would place J.B. in the high risk category of offenders.
Dr. Feibusch examined J.B. in May 2006. He reviewed J.B.'s history with respect to his involvement with the criminal justice system and noted that J.B. also had a history of abusing alcohol and cocaine. Dr. Feibusch diagnosed J.B. as having personality disorder not otherwise specified, with antisocial traits. Dr. Feibusch explained that he reached this diagnosis because J.B. had "a longstanding history of problematic interpersonal relationships." According to Dr. Feibusch, J.B. showed "a disregard for the rights of others." Dr. Feibusch testified that the only reason he did not reach a diagnosis of antisocial personality disorder was the absence of any history of a conduct disorder prior to the age of fifteen. He also said he strongly suspected a diagnosis of paraphilia not otherwise specified but did not believe he had sufficient corroborating information to reach that diagnosis. According to Dr. Feibusch, J.B. had a mental abnormality which predisposed him to sexually reoffend and in the doctor's opinion, it was highly likely that J.B. would reoffend.
Dr. Barone interviewed J.B. shortly before the hearing. She also reviewed J.B.'s history of sexual offenses. She noted that J.B.'s account of the several incidents did not accord at all with the official accounts and that he was unable to provide any explanation for the variance. J.B. has a number of children through several different women; he was unable to keep the number straight. He said he was supporting them, but there was no history to corroborate that assertion. Dr. Barone noted J.B.'s "lack of concern for anyone or anything other than himself. He's a very self-centered individual. He lives by his own set of rules."
Dr. Barone diagnosed J.B. as having paraphilia, not otherwise specified. She reached this diagnosis because he is a repetitive sex offender, despite having been arrested and jailed several times for this conduct. She considered it "crystal clear that there is a compulsive element to his sexual pathology." Additionally she diagnosed J.B. as having severe antipersonality disorder, "characterized by an overall disregard for societal norms, aggressiveness, impulsivity, a lack of remorse, a lack of empathy." Dr. Barone said that it was a matter of concern that J.B. had spent two years in sex offender treatment and characterized his lack of remorse and lack of empathy as "chilling." She said he had a high risk of reoffending.
J.B. testified at the hearing. He said that he had completely turned his life around, that he no longer used drugs or alcohol and had found religion. He said he was in a committed relationship with Yolanda Giles, but that they had broken up several times but always reconciled. Despite his assertion of a committed relationship with Ms. Giles, he admitted involvement with a number of different women at the same time.
J.B. raises 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.
EVIDENCE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT J.B. IS CURRENTLY SUFFERING FROM A MENTAL ABNORMALITY WHICH MAKES HIM HIGHLY LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE - EXPERT'S OPINION WAS BASED IN LARGE PART UPON A COMPUTERIZED INTERPRETATION SERVICE WHOSE RELIABILITY HAD NOT BEEN ESTABLISHED.
DEFENDANT'S COMMITMENT UNDER THE SVPA WAS ERRONEOUS WHERE THE EXPERTS RELIED SUBSTANTIALLY UPON OTHER ACTS EVIDENCE THAT RESULTED IN DISMISSALS OR NOT GUILTY VERDICTS.
THE JUDGMENT OF THE LAW DIVISION SHOULD BE VACATED BECAUSE THERE WAS NO TESTIMONY FROM A PSYCHIATRIST ON J.B.'S TREATMENT TEAM WHO CONDUCTED A PERSONAL EXAMINATION OF THE DEFENDANT. (Not Raised Below)
Persons who are deemed to be sexually violent predators may be civilly committed under the Sexually Violent Predators Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38. The State must establish by clear and convincing evidence that the person has behaved in a sexually violent manner in the past and is highly likely to reoffend in the future as a result of a mental abnormality or personality disorder that affects the individual's emotional, cognitive or volitional capacity. In re Commitment of W.Z., 173 N.J. 109, 120 (2002); N.J.S.A. 30:4-27.26.
It is well settled that the scope of our review of such matters is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "We must give 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 90 (App. Div.) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)), certif. granted, 193 N.J. 222 (2007). The reviewing judge's determination in that regard is "subject to modification only where the record reveals 'a clear abuse of discretion.'" In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 465 (App. Div. 2006) (quoting J.P., supra, 339 N.J. Super. at 459), certif. denied, 190 N.J. 255 (2007).
Here, the reviewing judge found the testimony of Drs. Feibusch and Barone "highly persuasive" and characterized a portion of J.B.'s testimony about his conviction under Megan's Law as "nonsensical." We have no basis to ignore those assessments.
We have carefully reviewed this record, and the initial order of commitment is affirmed substantially for the reasons expressed by Judge Serena Perretti in her oral opinion of November 1, 2006. We add only a few additional comments.
We disagree with J.B.'s contention that Dr. Barone's testimony rested upon an untested computerized scoring of one of the tests she administered. Dr. Barone's diagnosis rested upon her careful interview of J.B., her review of his entire history and upon testing. Her interpretation of the test results was the product of her professional experience combined with the knowledge she gained about J.B. through her interview and review of his records.
Nor do we agree that Dr. Feibusch and Dr. Barone improperly relied upon incidents that did not result in a conviction to form their opinions. Such incidents were properly viewed within a continuum of behavior.
Finally, we reject the argument that the proceedings were fatally deficient because no member of J.B.'s "treatment team" testified. We note that no objection on this basis was made at the time of the hearing. We are convinced that even if it had been, it would have been rejected. We have recently held that a psychiatrist that is employed by the Division of Mental Health Services, as is Dr. Feibusch, is a member of a resident's treatment team. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 25-26 (App. Div.), certif. denied, 188 N.J. 492 (2006).
The order under review is affirmed.
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