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In re Civil Commitment of C.T.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 2, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF C.T.R. SVP-431-06.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-431-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 17, 2008

Before Judges Cuff and Baxter.

C.T.R. appeals from the September 26, 2006 order finding him subject to involuntary civil commitment 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.

On May 5, 2006, the State filed a petition for the civil commitment of C.T.R. pursuant to the SVPA. In the petition the State cited his November 1994 conviction of first-degree robbery and first-degree aggravated sexual assault as the predicate offenses. The petition further cited his February 1989 guilty plea to fourth-degree criminal sexual contact and first-degree robbery and several disciplinary reports involving sexual incidents with female staff during his incarceration. The psychiatrists who submitted certifications in support of involuntary civil commitment rendered the following diagnoses: paraphilia NOS and antisocial personality disorder. Both opined that C.T.R. poses a high risk of committing further acts of sexual violence if not confined.

On May 9, 2006, Judge Waters entered an order for temporary commitment having found probable cause to believe that C.T.R. met the statutory criteria for involuntary civil commitment pursuant to the SVPA. The initial hearing was conducted on September 14, 15, and 21, 2006. At the hearing, the State presented the testimony of Dr. Luis Zeiguer, a psychiatrist, and Natalie Barone, a psychologist. C.T.R. did not testify or submit any expert testimony. In her September 26, 2006 oral opinion, Judge Perretti found that C.T.R. has a mental abnormality or personality disorder that predisposes him to commit sexually violent acts, and that he has difficulty controlling his predisposition to sexually violent behavior. She also found that he is highly likely to commit sexually violent acts unless committed for further treatment.

On appeal, C.T.R. argues that the State failed to produce sufficient evidence to meet its burden by clear and convincing evidence that he has a mental abnormality or personality disorder that causes him serious difficulty in controlling his deviant sexual behavior and that he is highly likely to commit such offenses unless confined. He also contends that he was denied due process because the opinions concerning mental abnormality and risk of recidivism were based on inadmissible hearsay.

Under the SVPA, the State must prove by clear and convincing evidence that the person suffers from a mental abnormality, or personality disorder in which the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that person will not control his or her sexually violent behavior and will reoffend. [In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002).]

Evidence is clear and convincing when it produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations. State v. Hodge, 95 N.J. 369, 376 (1984). The SVPA's focus is "on the subject's current mental condition and the present danger to the public, not on punishment." In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). The designation "likely to engage in acts of sexual violence" for purposes of the SVPA means "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." N.J.S.A. 30:4-27.26.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)).

We are satisfied that the State met its burden of proof and that the opinions offered by Drs. Zeiguer and Barone were based on admissible evidence. Dr. Zeiguer based his opinion on a review of prior experts because C.T.R. refused to participate in an interview. When the resident refuses to participate in an interview, a psychiatrist or psychologist may refer to and rely on examinations and reports of other experts, if those reports are of the type relied on by experts, and the psychiatrist or psychologist formulates their own opinion based on those reports. See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.) (a resident who refuses to be examined cannot complain that the State psychiatrist's opinion is not based on personal observation), certif. denied, 188 N.J. 492 (2006).

We also reject the suggestion that the prior decision that C.T.R. did not qualify to serve his custodial sentence at the Adult Diagnostic and Treatment Center precludes qualification as a sexually violent predator. The issues that must be considered in fashioning a custodial sentence are significantly different than the requirements that must be satisfied to commit a person to the STU as a sexually violent predator. In re Commitment of J.S.W., 371 N.J. Super. 217, 224 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005). A finding that a person does not meet the requirements of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10, does not bar an involuntary civil commitment under the SVPA. Ibid.

Dr. Zeiguer rendered a diagnosis of paraphilia NOS based on C.T.R.'s history of sexual behavior with non-consenting persons. He explained that paraphilia does not spontaneously remit because it is a sexual preference that is an ingrained aspect of personality. Moreover, he opined that there was no evidence of mitigation of the paraphilia due to age, illness or therapy.

Dr. Zeiguer also reported that C.T.R. suffered from poly-substance abuse. This diagnosis was based on C.T.R.'s report of crack cocaine and alcohol use that commenced when he was very young. He predicted that if C.T.R. became intoxicated, his behavior would become more impulsive.

The psychiatrist also opined that C.T.R. suffered from a personality disorder NOS. He explained that this mental abnormality is manifested by a pervasive, persistent pattern of violation of other people's rights.

Finally, Dr. Zeiguer reported that C.T.R. posed a high risk of reoffense. He utilized the Static-99 to assess risk and assigned a score of 9 to C.T.R. Such a score is indicative of a high risk of sexual reoffense. Dr. Zeiguer also reported that C.T.R. seems impervious to punishment and lacks sympathy for others.

Dr. Barone provided a similar diagnosis. She rendered her diagnosis and risk assessment based on various sources including adult pre-sentence reports, clinical certificates, psychological reports, judgment of conviction, Department of Corrections records, and STU staff reports. C.T.R. refused to be interviewed by Dr. Barone, but she noted that the variety of reports available to her are very helpful. She noted that this document review revealed that C.T.R.'s sexual deviance increased over time and became more chronic. She cited a sexual assault committed during a robbery and another sexual assault committed while on parole. She also cited his prison disciplinary history of harassing and stalking female correctional workers. She noted that such behavior is indicative of active deviant sexual interest.

Based on C.T.R.'s history and present behavior, Dr. Barone opined that he poses a high risk of future sexually violent acts unless confined for treatment. She, too, scored the Static-99 at 9.

Judge Perretti accepted the findings of Drs. Zeiguer and Barone that C.T.R. suffered from a mental abnormality and personality disorder that predisposed him to commit acts of sexual violence and that made it likely that he would commit other sexually violent acts if not confined. These findings concerning mental abnormality, predisposition to commit acts of sexual violence, inability to control this predisposition, and risk of reoffense are well-established by C.T.R.'s criminal history, his custodial record, and his treatment history. Therefore, we discern no basis to disturb the September 26, 2006 order.

Affirmed.

20081002

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