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In re Civil Commitment of B.Z.I.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 5, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF B.Z.I. SVP-407-05

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-407-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2008

Before Judges Collester and C.S. Fisher.

Committee B.Z.I. appeals from the June 28, 2006 judgment of Judge Philip M. Freedman granting the State's petition for civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24, on grounds that B.Z.I. continues to be a sexually violent predator in need of civil commitment in a secure facility. He directed that B.Z.I. be committed to the New Jersey Special Treatment Unit (STU) for the custody, care and treatment of sexually violent predators with a review hearing to be conducted on May 21, 2007.

At the time of his commitment to the STU, B.Z.I. was forty-eight years old. His history as a sexual offender relates back to 1971 when he was arrested and charged as a juvenile with sodomy. That case was dismissed on April 14, 1972, due to the non-appearance of the witness. On February 5, 1976 B.Z.I. was arrested and charged as a juvenile with atrocious assault and battery with intent to rape and remanded to the Essex County Youth House pending a May hearing. The charges were subsequently dismissed on motion of the prosecutor.

B.Z.I.'s first conviction of a sexual offense occurred on July 7, 1978 when he was convicted of raping a sixteen-year-old girl at knifepoint. He was sentenced to a twelve-year term for rape and a consecutive ten year term for the possession of a dangerous weapon. After his release on parole, B.Z.I. was arrested on February 25, 1988 and charged with two counts of first-degree aggravated sexual assault, third-degree aggravated assault, and fourth-degree unlawful possession of a weapon. The charges related to an incident on February 8, 1988 when B.Z.I. abducted an eighteen-year-old woman on the street at gunpoint to enter an abandoned house where he forced her to perform fellatio and raped her. B.Z.I. pled guilty to one count of first-degree aggravated sexual assault, and he was sentenced on October 21, 1988 to a term of fifteen years in prison with a seven year period of parole ineligibility. He was adjudged a compulsive and repetitive sex offender and served his sentence at the Adult Diagnostic and Treatment Center (ADTC) until December 1997, when he reached the maximum term of his incarceration for the 1988 offense. He was then transferred to Northern State Prison to serve his sentence for the violation of his parole for his 1978 conviction. Prior to his release on August 11, 2005, the State filed its petition for civil commitment under the SVPA, attaching the required two medical certificates. The court found probable cause to believe that B.Z.I. was a sexually violent predator in need of commitment and he was committed to the STU pending final hearing which occurred on May 30, 2006.

At that hearing the State presented the testimony of Dr. Vivian Shnaidman and Dr. Natalie Barone. Dr. Shnaidman testified at length regarding B.Z.I.'s sexual offense history, noting that he was first charged with a sexual offense in 1971 when he was only twelve years old. During the course of her interview with B.Z.I., he acknowledged raping the sixteen-year-old girl in 1977 and the eighteen-year-old in 1988. He also stated that the day after the 1988 offense he committed a similar sexual assault upon an additional victim. He was indicted for this offense, but the charges were dismissed as part of his plea agreement.

Dr. Shnaidman stated that the significance of B.Z.I. committing two violent sexual assaults on two consecutive dates was that it established B.Z.I. was a constant rapist. She also noted that the last offense was committed while B.Z.I. was on parole, which indicated he cannot be deterred by the criminal justice system. She opined that B.Z.I. is unable to correct his previous pattern and lacks any deep understanding of his sexual offenses or how he could prevent himself from similarly offending in the future. Her diagnosis of B.Z.I. was paraphilia, NOS, and antisocial personality disorder. She said that paraphilias usually do not spontaneously resolve and that B.Z.I. did not benefit from any treatment he received at the ADTC or thereafter. She further explained that her diagnosis of antisocial personality disorder was based on B.Z.I.'s pattern of disregard for the rights of others. The combination of paraphilia and antisocial personality disorder combined with the history of sexual violence led Dr. Shnaidman to conclude that B.Z.I. is a high risk to sexually re-offend.

Dr. Barone evaluated B.Z.I. in February 2006. She noted that his offenses were particularly vicious and that he had a penchant for using weapons. She found him to be a compulsive sex offender who enjoys violating others. The fact that he committed rapes on consecutive days while on parole led Dr. Barone to diagnose B.Z.I. as a highly manipulative full-blown psychopath who lacks concern for the consequences of his violent action and only feigns remorse. Her full diagnosis was paraphilia, NOS, non-consent, polysubstance abuse in remission and antisocial personality disorder. She stated that his paraphilia is very strong because although incarcerated for many years, B.Z.I. still has intense sexual fantasies, which led Dr. Barone to doubt that he will ever be able to control his sexual pathology. Therefore, she concluded that he presents a high risk to sexually offend in the foreseeable future unless confined in a secure facility.

Dr. Timothy Foley testified on behalf of B.Z.I. to a diagnosis of polysubstance abuse, antisocial personality disorder and paraphilia, NOS. He stated that while B.Z.I. told him that he did not plan any of the rapes, his examination of B.Z.I.'s conduct led him to conclude the opposite. However, he disagreed with Dr. Barone's diagnosis of psychopathy. He also disagreed that B.Z.I. was a high risk to re-offend. He stated that B.Z.I.'s placement at the ADTC help mitigate the risk of his re-offending as did his age and his incarceration.

Accordingly, Dr. Foley concluded that B.Z.I. was only at moderate risk to sexually re-offend if he were to be released into the community.

B.Z.I. testified as to his very difficult and painful childhood. He suffered mental and physical abuse from his alcoholic parents and sexual abuse both by older females and an older male. He acknowledged the sexual offenses for which he was convicted as well as the additional rape in 1988 which was dismissed during plea negotiations. He explained that his offenses were related to his use of drugs and alcohol and his feelings of rejection by women. He said he learned about his offense cycle during his time at the ADTC and now understood that his prior actions were wrong and that he needed to stop resisting therapy and confront his problems. His plan upon release from the STU was to get a job, go back to school and get a degree as a social worker to work with juvenile sex offenders. He planned on obtaining outpatient ADTC treatment at Trenton State Hospital twice a week if released.

In his oral decision Judge Freedman found that B.Z.I. suffered from paraphilia and antisocial personality disorder. He found that B.Z.I.'s propensity to rape extended over a lengthy period and that his history of sexual offenses with strangers, his parole violation, lack of remorse and unresolved anger toward women, made him a high risk for re-offense if released. Judge Freedman found the testimony of Dr. Shnaidman and Dr. Barone to be credible and that Dr. Foley's testimony was credible up to the point where he stated that B.Z.I. was only at moderate risk to re-offend. He further found that B.Z.I.'s testimony lacked credibility because it contradicted what he had previously told the expert witnesses and other evaluators. As a result, Judge Freedman concluded that B.Z.I. suffers from a mental abnormality and personality disorder which predisposes him to commit acts of sexual violence and that if he were to be released, it would be highly likely that he would commit a sex crime. He characterized B.Z.I. as "very dangerous" and committed him to the STU with a review date of one year.

On appeal B.Z.I. makes the following legal arguments:

POINT I - B.Z.I.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 EX POST FACTO CLAUSES) (Not Raised Below).

POINT II - B.Z.I.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOALTES THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1 (PROCEDURAL AND SUBSTANTIVE DUE PROCESS) (Not Raised Below).

POINT III - THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT B.Z.I.

POINT IV - THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT B.Z.I.

SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

Our scope of review of judgments of commitment under the SVPA is extremely narrow. In re the Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We are to give the utmost deference to the reviewing judge's balancing of societal interests with individual liberty. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

By the terms of N.J.S.A. 30:4-27.26, for a person to be adjudicated a sexually violent predator the person must have been convicted, adjudicated delinquent or found not guilty by reason of insanity of the commission of a sexually violent offense. Here there is no dispute that B.Z.I. has been convicted of sexually violent offenses. Moreover, the expert testimony as found by Judge Freedman clearly indicates that B.Z.I. suffers from a mental abnormality or personality disorder which results in an impaired ability to control his sexually dangerous behavior and predisposes him to commit acts of sexual violence. N.J.S.A. 30:4-27.26. In re the Commitment of W.Z., 339 N.J. Super. 549, 563 (App. Div. 2001), aff'd as modified, 173 N.J. 109 (2002).

After careful review of the record in this case we find that there is substantial evidence to support the factual findings and legal conclusions of Judge Freedman that there was clear and convincing proof that B.Z.I. suffers from a mental condition predisposing him to commit acts of sexual violence and that he is likely to engage in future acts of sexually violent behavior and endanger the health and safety of others. N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at 132.

B.Z.I.'s arguments that the SVPA is unconstitutional has previously been addressed by this court and our Supreme Court. Doe v. Poritz, 142 N.J. 1 (1995); W.Z., supra, 173 N.J. at 109; In re the Commitments of M.G./D.C., 331 N.J. Super. 365 (App. Div. 2000). Furthermore, nearly identical statutes have been upheld by the United States Supreme Court. See Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed. 2d 323 (1979); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed. 2d 501 (1997); Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed. 2d 856 (2002). Therefore, B.Z.I.'s constitutional arguments including his assertions that the SVPA violates the ex post facto clauses of the United States and New Jersey Constitutions as well as his procedural and substantive due process rights are without merit and need no further comment.

R. 2:11-3(e)(1)(E).

Finally, B.Z.I.'s argument that Judge Freedman should not have considered the pre-sentence investigation reports, police reports, as well as prior psychiatric and psychological evaluations is similarly without merit, and we have rejected similar arguments in the past. In re the Commitment of R.S., 339 N.J. Super. 507, 531 (App. Div. 2001), aff'd, 173 N.J. 134 (2002); In re the Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201 (App. Div. 2004); State v. Eatman, 370 N.J. Super. 295, 302 (App. Div. 2001). The remaining arguments raised by B.Z.I. are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

20080805

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