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In re Civil Commitment of D.S. SVP-403-05

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2008

IN THE MATTER OF CIVIL COMMITMENT OF D.S. SVP-403-05

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-403-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 29, 2008

Judges S.L. Reisner and LeWinn.

D.S. appeals from an order entered on June 20, 2006, following his initial commitment hearing, committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

I.

An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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.

[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating 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 Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committed person will reoffend by clear and convincing evidence. Id. at 132-34; see also In the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.

As an adult, defendant pled guilty to two separate charges of sexual assault on young boys. He also had a 1991 juvenile adjudication arising from a sexual assault. In interviews with a psychiatrist, he also admitted to additional sex offenses for which he was not convicted. He further admitted to a significant drug and alcohol problem. Based on his adult convictions, he was sentenced to Avenel as a repetitive and compulsive sex offender, where he was diagnosed with pedophilia. He engaged in some therapy at Avenel, but was assessed as having made poor progress based on his failure to participate fully in treatment.

Testifying for the State, Dr. Michael R. McAllister, a psychiatrist, indicated that he first attempted to interview D.S. in August 2005, but D.S. refused to be interviewed. He again attempted an interview on May 2, 2006, but D.S. left the interview when the doctor began asking him questions about his adolescence. According to Dr. McAllister, while he reviewed the reports of other experts who had previously examined D.S., he arrived at his own diagnosis. He also considered in particular D.S.'s history during his stay at Avenel.

Dr. McAllister opined that an individual who had succeeded in treatment at Avenel would be willing to be interviewed, would be honest, open, and forthright, would demonstrate an understanding of how they came to perform sexual offenses, and would also be able to demonstrate an understanding of . . . how they could control and prevent themselves from engaging in such behaviors.

In contrast, D.S. was "not even able to complete the interview, much less be able to discuss the sexual offense material in an open and honest fashion. . . . He did not act in a way that would be consistent with an individual who would be capable of cooperating in outpatient treatment. . . ." Dr. McAllister also placed weight on D.S.'s history of repetitive sexual assaults on young children, even after he had been prosecuted for such assaults, and thus should have been careful to refrain from such behavior. The doctor also noted that reports from Avenel treatment providers indicated that D.S. had limited his participation in therapy while at Avenel.

Dr. McAllister diagnosed D.S. as suffering from a "sexual perversion" known as "paraphilia," as demonstrated by repeated sexual acts against pre-pubescent children as well as against a young teenage boy. He also diagnosed personality disorder as well as substance abuse and "alcohol dependence in institutional remission." He opined that these conditions together, would cause D.S. to have serious difficulty in controlling his sexual offending behavior and that he posed an "extremely high" risk to re-offend if released.

The State also presented testimony from Dr. Natalie Barone, a psychologist. D.S. refused to be interviewed by Dr. Barone, although he eventually permitted her to conduct psychological testing. Like Dr. McAllister, Dr. Barone reviewed reports of prior evaluations of D.S., documents experts in her field would typically rely upon in evaluating patients and performing risk assessments. However, Dr. Barone testified that she arrived at her own diagnosis. She described D.S. as "a compulsive sex offender. . . . He uses his authority position as stepfather or mom's boyfriend to coerce or blatantly force his child victims into engaging in acts of sexual deviancy." He also generally had a history of violent non-sexual offenses such as assault. His early onset of sexual offending, beginning when he was a juvenile, and his recidivism despite prior prosecutions, were added risk factors.

Dr. Barone diagnosed D.S. as having pedophilia, "sexually attracted to both male and females", as well as "polysubstance abuse in institutional remission." Based on his history and the MMPI-2 test, she also diagnosed antisocial personality disorder. Dr. Barone opined that his substance abuse problem could exacerbate his tendency to commit sexual offenses because use of drugs and alcohol can "make sex offenders more comfortable with acting on their deviant sexual urges." Using the Static 99 assessment, she also found D.S. to be "in a high-risk category." Dr. Barone concluded that D.S. was at a high risk to re-offend if released.

Finally, Dr. Pogos H. Voskanian, M.D. testified to the accuracy of a report that he wrote of an interview with D.S., in which D.S. admitted to Dr. Voskanian that he committed sex offenses against three young children.

In a comprehensive forty-four page oral opinion placed on the record on June 15, 2006, Judge Freedman carefully addressed the evidentiary issues involved in considering reports of non-testifying experts. He explained in some detail that while he had read all of the prior psychological evaluations and other documents submitted by the State, he would not consider any of those documents for their truth unless they came within an exception to the hearsay rule. Rather, he considered the documents as part of his evaluation of the credibility of the experts who testified at the hearing and who relied on those documents in reaching their opinions.

Based on his evaluation of the experts who testified at the hearing, Judge Freedman concluded that D.S. suffers from paraphilia and pedophilia, with a pre-disposition to engage in "sexual violence." The judge found that D.S. has a "high propensity" to molest young children and that "[h]e would have, if released, serious difficulty in controlling his sexually violent behavior because of his lack of treatment effect and . . . if he was released in the reasonably foreseeable future, he would be highly likely to engage in the kind of conduct he's engaged in in the past."

II.

On this appeal, our review of Judge Freedman's decision is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

D.S. raises the following arguments for our consideration:

POINT I: THE COURT BELOW, MISINTERPRETING EVIDENCE RULES 201(a)[,] 703, 803(c)(6), 803(c)(8), INTER ALIA, ERRED IN ADMITTING INTO EVIDENCE A MYRIAD OF INADMISS[I]BLE HEARSAY EVIDENCE OFFERED BY THE STATE.

A. Neither N.J.R.E. 703 or 803(c)(6) Permit[s] The Admission Of Prior Forensic Psychiatric And Psychological Evaluations As Direct Evidence Without The Production Of The Authors Thereof.

B. Reliance Upon Extensive Inadmissible Hearsay Contained In Police Reports, Prosecutors' Investigative Reports And Presentence Report By The State's Experts, Should Have Caused Their Opinions To Be Severely Discounted Or Disregarded.

C. Rule 703 Does Not Relieve The State From Establishing The Facts Underlying The Opinions Of Its Experts.

POINT II: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT D.S. HAD SERIOUS DIFFICULTY IN CONTROLLING HIS HARMFUL SEXUALLY VIOLENT BEHAVIOR, SUCH THAT IT WAS HIGHLY LIKELY THAT HE WILL NOT CONTROL SUCH BEHAVIOR AND WILL REOFFEND.

Having reviewed the record, we find all of these contentions to be without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following comments. In his appellate brief, D.S. contends that inadmissible hearsay documents were admitted at his hearing and that the State's witnesses had either not interviewed D.S. or interviewed him for only a few minutes. We find these contentions to be without merit.

First, it is undisputed that D.S. resisted being interviewed and that Dr. McAllister was only able to interview D.S. for fifteen minutes. Dr. Barone was able to perform psychological testing on D.S. but not to interview him. D.S. cannot rely on his own lack of cooperation to attack the validity of the experts' opinions. See In re Civil Commitment of A.H.D., 386 N.J. Super. 16, 28-30 (App. Div.), certif. denied, 188 N.J. 492 (2006). Moreover, there is no dispute that the testifying experts arrived at their own diagnoses and did not rely exclusively on the opinions of other experts.

Turning to D.S.'s evidentiary arguments, the judge carefully and correctly delineated the admissible evidence that he considered in reaching his decision. See In re A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004). D.S.'s prior juvenile adjudication and criminal convictions for sexual offenses, as well as his convictions for assaults and failure to register under Megan's Law, were legally admissible evidence. N.J.R.E. 803(c)(22). Moreover, pursuant to N.J.R.E. 803(b)(1), the court properly considered D.S.'s admissions to Dr. Voskanian that he had committed additional sex offenses.

Affirmed.

20080811

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