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In re Civil Commitment of K.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2008

IN THE MATTER OF CIVIL COMMITMENT OF K.B., SVP-439-06.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-439-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 6, 2008

Before Judges R. B. Coleman and Sabatino.

Defendant K.B. appeals from a March 27, 2007 order directing his commitment for treatment as a sexually violent predator at a Special Treatment Unit (STU) in Avenel and fixing a date for further review on March 12, 2008. We affirm.

The State filed its original Petition for Civil Commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.28, on August 22, 2006. The parties agreed to the filing of an amended petition on January 31, 2007. A full hearing was conducted on March 27, 2007, before Judge Serena Perretti.

At the time of the State's motion for civil commitment, defendant was incarcerated for an offense committed on June 27, 2001 in Pleasantville. He was charged and convicted of three counts of fourth degree sexual assault, N.J.S.A. 2C:14-2b, one count of lewdness, N.J.S.A. 2C:14-4, and three counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. In addition to these charges, K.B. was convicted on May 20, 2002 of failure to register as a sex offender.

Defendant has had a lengthy legal history dating back to 1975. In 1975, defendant was convicted by a California jury of rape and perversion against an adult female. In 1983, in Philadelphia, Pennsylvania, defendant was charged with two counts of indecent exposure and five counts of open lewdness. He was found guilty of all seven counts, and he received a sentence of one to two years in county jail. In 1984, K.B. was again charged with and found guilty of indecent exposure and given a one to two-year sentence of incarceration in Philadelphia County Jail. Just ten days after that charge, defendant was found guilty of disorderly conduct and sentenced to one month in jail. On May 12, 1984, K.B. also was charged with simple assault, terroristic threats, rape, indecent assault, indecent exposure, incest and corruption of a minor, to which he pled guilty and received a four to twenty-year prison term. The State introduced, as hearing exhibits, records of all of these prior dispositions.

The State also presented the testimony of two witnesses at the hearing: Dr. Michael R. McAllister, a State psychiatrist, and Dr. Natalie Barone, a psychologist. Dr. McAllister attempted to interview defendant on three separate occasions. On the first attempt, defendant made some brief voluntary statements, but otherwise declined to be interviewed. At the second scheduled interview, defendant accused the doctor of lying and left the room before the interview began. On the third attempt, defendant yet again declined an interview but commented about how the witnesses at his trial had lied.

Because defendant refused to be interviewed, Dr. McAllister based his psychiatric evaluation on historical data and past conduct. From those records and from his brief interactions with defendant, he diagnosed defendant with paraphilia, "a sexual perversion." The doctor also diagnosed K.B. with exhibitionism, voyeurism and pedophilia. He likewise suffered from personality disorder NOS in that he had a lengthy history of sexual offenses and the pattern of sexual offense charges that go beyond those convictions indicate attitudes of willingness and enjoying of exploiting others attitude or an entitlement to sex regardless of the experience or harm to others, his repeated crimes involving children involve -- reflect a failure to emotional maturity, failure to develop psychological maturity, and enjoyment out of exploiting children without regard to the consequences.

Dr. McAllister also determined that K.B. had an alcohol and marijuana dependency based on facts contained in interviews and reports prepared by other doctors. For all the above reasons, the doctor concluded that defendant would be "a severe risk to sexually re-offend if he were at liberty."

K.B. also indicated that he was "unwilling to participate in an interview" with Dr. Barone. Dr. Barone was, nonetheless, able to do a risk assessment of sexual recidivism. To prepare her report, she used information relating to K.B.'s criminal history, witness statements, details of offenses and previous psychological and psychiatric evaluations. After performing a risk assessment, Dr. Barone scored K.B. as an eight. She explained "an eight would place [K.B.] . . . with a high level of risk for being reconvicted of a new sex offense." To arrive at this score, she conducted an in-depth analysis of K.B.'s twenty-six year history of sexual offenses. Dr. Barone believed that age could not be considered a mitigating factor because defendant continued to commit offenses well into his fifties.

Dr. Barone concluded that defendant meets the diagnostic criteria for paraphilia NOS, non-consensual and exhibitionism but, unlike Dr. McAllister, she ruled out pedophilia. Like Dr. McAllister, Dr. Barone classifies defendant as an alcohol abuser and notes that on a personality assessment inventory conducted by a previous doctor, K.B. reported alcohol as being a source of problems in his life. K.B. was twice arrested for DUI. Both doctors found defendant to have had grandiose allusions about his past. Despite his complex sexual pathology, K.B. has continually refused sex offender treatment.

At the conclusion of the hearing and after considering all the testimony, Judge Perretti ruled that

[t]he evidence presented was clear and convincing. The Court is clearly convinced that this respondent is a sexually violent predator. He suffers from abnormal mental conditions and personality disorder that impacts his cognitive, volitional, and emotional functioning, so as to predispose him to commit sexually violent acts.

He has serious difficulty controlling his sexually violent behavior, as he has repeatedly demonstrated in the past. He presents a severe risk to re-offend, and it is highly likely that he will re-offend, if not committed under the statute for care and custody. There will be a review in one year.

Consistent with that ruling, the court entered its March 27, 2007 order, civilly committing defendant. He remained confined in Avenel as of the date of his notice of appeal filed May 3, 2007.

In his appellate brief, defendant raises the following arguments:

POINT I: THE STATE FAILED TO PROVE BY COMPETENT, CLEAR AND CONVINCING EVIDENCE THAT K.B. WAS SUBJECT TO SVP COMMITMENT BECAUSE THE STATE RELIED UPON EXCESSIVE AMOUNTS OF HEARSAY AND UNPROVEN ALLEGATIONS.

POINT II: THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. MCALLISTER AND BARONE BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING WITNESSES. (NOT RAISED BELOW).

POINT III: THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL.

A trial court's evidentiary rulings are "'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error in judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); In re Commitment of R.S., 339 N.J. Super. 507, 531 (App. Div. 2001), aff'd, 173 N.J. 134 (2002). Under that standard, an 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.'" Marrero, supra, 148 N.J. at 484 (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

Defendant disputes Dr. McAllister's and Dr. Barone's use of prior convictions, pre-sentence reports and expert reports in arriving at their ultimate expert conclusions. N.J.R.E. 703 clearly states that

[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

We have previously recognized the admissibility of hearsay as part of an expert witness's testimony at SVPA commitment hearings. See, e.g., In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 224-25 (App. Div. 2007) (Drs. McAllister and Barone were the testifying witnesses in this case as well). "'An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state.'" In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (quoting State v. Eatman, 340 N.J. Super. 295, 302 (App. Div. 2001)).

In this case, Judge Perretti recognized limitations on the use of hearsay evidence. At the hearing she stated:

As far as the Court is concerned, I understand that I may not, nor will I, use inadmissible hearsay as substantive proof of the matters asserted, but merely will use those sources as I evaluate the basis for the doctor's diagnoses and opinions. I will consider them, of course, for their reliability. This is well established in the case law, and just as a sample, I might mention L.X.M., decided March 14th, 2006.

The experts relied on pre-sentence reports. Such reports are used "to obtain a history of what happened through the years, to see how the people involved in the offenses viewed the offenses, and to get a sense of the way [defendant] responded to these situations over time." J.H.M., supra, 367 N.J. Super. at 613. Pre-sentencing reports are routinely used in SVP hearings, and a testifying expert may rely on pre-sentence reports in preparing his or her opinions. Ibid. Furthermore, although the testifying doctors relied on a litany of other documents to arrive at their diagnoses, they did not mimic the conclusions of other doctors, but reached their own independent assessments. Cf. In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 575-76 (App. Div. 2004).

In this case, the SVP court allowed the "judicious use of hearsay," In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005), while not allowing hearsay to dominate the proceedings. It is this balance which should be achieved in SVPA review hearings. Defendant refused to be interviewed by either testifying doctor and should not be allowed to benefit from his lack of cooperation in frustrating or impeding a more thorough expert analysis. Under the circumstances, we find no fault with the court's exercise of its discretion in making its evidentiary hearings.

Defendant next asserts that the State did not prove K.B. was a sexually violent predator by clear and convincing evidence. For the State to have its petition for civil commitment granted, the State must demonstrate that the individual in question is a threat to the health and safety of others because he "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; see In re Commitment of W.Z., 173 N.J. 109, 132 (2002) (there must be a showing that defendant has serious difficulty controlling his sexually violent behavior and is highly likely to re-offend). The State must also present evidence that defendant was "convicted, adjudicated delinquent or found not guilty by reason of insanity for the commission of a sexually violence offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial . . . ." N.J.S.A. 30:4-27.26. The State must prove all the elements of N.J.S.A. 30:4-27.26 by clear and convincing evidence. In re Commitment of J.R., 390 N.J. Super. 523, 530 (App. Div. 2007); In re Commitment of Raymond S., 263 N.J. Super. 428, 431 (App. Div. 1993).

Evidence is clear and convincing when it produce[s] in the mind of the trier of fact, a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the fact-finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

[In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 59 (App. Div. 2004) (quoting State v. Hodge, 95 N.J. 369, 376 (1984)).]

Judge Perretti indicated she was satisfied that the State had satisfied its burden by clear and convincing evidence.

On appeal, the scope of our review is "extremely narrow, with the utmost deference accorded to the [trial] judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). We will disturb the trial court's ruling "only where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). We perceive no basis for us to disturb the court's decision in this instance. Accepting, as we do, that expert witnesses may rely upon hearsay evidence, the court's conclusions are amply supported by the record.

While we acknowledge that "'[c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection'", W.Z., supra, 173 N.J. at 125 (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed. 2d 323, 330-31 (1979)), we find that Judge Perretti properly exercised her discretion. Defendant has not received and appears uninterested in receiving any type of treatment. The two testifying experts provided the court with a detailed analysis of defendant's mental deficiencies and refusal to cooperate. In their professional opinion, K.B. remains a serious danger to society as he is highly likely to re-offend. We find that the hearing exhibits and testimony demonstrated clearly and convincingly that K.B. should be civilly committed. Therefore, we affirm substantially for the reasons expressed by Judge Perretti in her oral opinion of March 27, 2007.*fn1

Affirmed.


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