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In re Civil Commitment of K.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 6, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF K.H. SVP 441-06.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 441-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Yannotti and LeWinn.

K.H. appeals from an order entered by Judge Serena Perretti on January 18, 2007, which ordered his involuntary commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (the SVPA or the Act). We affirm.

K.H. was charged under Hudson County Indictment No. 84-1000-09 with aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1) (count one), and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (count two). K.H.'s victim was his step-sister, R.E. On October 2, 1984, K.H. pled guilty to count one.

At the plea hearing, K.H. admitted having sexual intercourse with R.E. knowing that she was younger than thirteen years old at the time. K.H. was sentenced on January 11, 1985, to ten years of incarceration, to be served at the Adult Diagnostic and Treatment Center in Avenel, New Jersey. He was paroled in March 1988.

Thereafter, K.H. was charged under Ocean County Indictment No. 00-10-1249 with sexual assault, in violation of N.J.S.A. 2C:14-2c(4) (count one); endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (count two); and sexual contact, in violation of N.J.S.A. 2C:14-3b (count three). On June 6, 2001, K.H. pled guilty to count one, which was amended to charge attempted sexual assault.

At the plea hearing, K.H. admitted that he attempted to sexually penetrate M.R. on the second floor of his bagel shop. K.H. was then forty-five years old. M.R. was one of his employees. She was fourteen years old at the time of the assault. K.H. was sentenced on September 28, 2001 to five years of incarceration, with a five-year period of parole ineligibility.

On September 18, 2006, the Attorney General filed a petition seeking K.H.'s civil commitment pursuant to the SVPA. On September 25, 2006, the court entered a temporary order of commitment. Judge Perretti conducted a commitment hearing on January 16, 2007.

At the hearing, the State presented testimony from Michael R. McAllister, D.O. Dr. McAllister testified that he evaluated K.H. and made a diagnosis of paraphilia, not otherwise specified (NOS). He explained that this diagnosis was based on the sexual pleasure and stimulation that K.H. derived from making inappropriate sexual remarks to his employees, touching the employees, behaving in a way that would make the employees feel ashamed and humiliated, and performing a sexual act with a teenage girl.

Dr. McAllister also made a provisional or conditional diagnosis of pedophilia. The doctor noted that K.H. had admitted that, when his step-sister was eleven or twelve years old, K.H. repeatedly had sexual intercourse with her, and had her perform oral sex.

In addition, Dr. McAllister stated that K.H. has a history of substance abuse, involving the use of hashish, cocaine and marijuana. The doctor said that K.H. reported that he was under the influence of drugs when he molested his step-sister, and he was using illicit substances when he offended against M.R. The doctor stated that "[t]he substance use would lend itself to decreased impulse control and impairments of judgment[.]" He said that it would also "lend itself to repeat sexual offending."

Dr. McAllister testified that, as a result of the conditions that he diagnosed, K.H. has "severe difficulty in controlling [his sexually offending] behavior." The doctor stated that there is a "very high" risk that K.H. will re-offend sexually if he is not confined in a secure facility. He explained that:

[K.H.'s] pattern of behavior is to engage in sexual comments and innuendo. And my medical opinion is that he would be at an extreme risk, an extreme likelihood of returning to that behavior, that he would find that behavior stimulating and exciting, and that he would also become emboldened by his success in that behavior. And that he would then proceed to more intrusive and more contact behavior -- touching, rubbing, grabbing, [making] humiliating remarks -- and eventually to sexual assault or attempted sexual assault.

Dr. McAllister added that he thought K.H. would act in this manner "[b]ecause his sexual deviancy is extremely strong, his impulse control in that regard is extremely poor, and that has been his pattern in the past." The doctor noted that K.H. has not been treated, and if he is released, he would "believe that he had escaped the consequences" of his offenses. That, the doctor said, "would also embolden him" to re-offend sexually. Dr. McAllister added that he did not believe community supervision for life would mitigate the risk that K.H. would re-offend.

K.H. presented testimony from Brian Friedman, Psy.D. Dr. Friedman is a member of the assessment team at the the Special Treatment Unit (STU), where persons committed pursuant to the SVPA are confined and treated. Dr. Friedman evaluated K.H. and diagnosed paraphilia NOS and hebephilia*fn1 , cannabis abuse, a rule-out of cannabis dependence, and personality disorder NOS with narcissistic and anti-social traits. Dr. Friedman said that he did not diagnose pedophilia because he believed that K.H.'s "primary arousal pattern" is directed toward adolescent girls.

Dr. Friedman testified that K.H. is "at the lower end" of the "spectrum" of deviance. The doctor stated that, in his view, K.H. did not meet the criteria for a diagnosis of psychopathy. He stated that "the presence of psychopathy is a risk factor." He explained that "one of the best predictors of sexual recidivism" is the combination of "psychopathy with a sexually deviant arousal pattern[.]"

Dr. Friedman found that K.H. presented a moderate risk to re-offend sexually. In reaching that conclusion, the doctor took into account K.H.'s score on the Static-99.*fn2 The doctor stated that, on the Static-99, K.H. fell in the category of "moderate-to-low risk for sexual reconviction." In addition, the doctor noted that K.H. was subject to community supervision for life, which entails urine monitoring "that would be important given [K.H.'s] substance abuse history." Community supervision also includes regular checks on K.H.'s employment and living arrangements.

Dr. Friedman additionally testified that K.H. denied that he sexually assaulted M.R. in 2000. The doctor explained that this may show a lack of insight "into certain areas," but he said that it was not "statistically related to [the] risk for sexual re-offense." The doctor added that the fact that K.H. had just completed a five-year sentence would serve as a deterrent to re-offending.

Judge Perretti placed her decision on the record on January 17, 2007. The judge noted that, in making their diagnoses and forming their opinions, Dr. McAllister and Dr. Friedman had relied upon substantially the same sources. The judge noted, however, that Dr. Friedman had relied in part on K.H.'s score on the Static-99 in finding that K.H. posed a moderate risk of re-offense. She pointed out that K.H. previously had re-offended despite the fact that his score on the Static-99 placed him in a category of low risk. The judge rejected Dr. Friedman's testimony because of his "excessive reliance on this misleading actuarial score[.]"

The judge provided additional reasons for rejecting Dr. Friedman's testimony. She noted that K.H. had "steadfastly refused sex offender treatment." Moreover, K.H.'s incarceration after his first offense had not deterred him from committing the second offense.

The judge also observed that Dr. Friedman had disregarded his own diagnoses. The judge stated that Dr. Friedman had diagnosed paraphilia N.O.S. for non-consent and [hebephilia], cannabis abuse, rule-out cannabis dependence in [a] controlled environment, and personality disorder N.O.S. with narcissistic and anti-social traits.

[Dr. Friedman] agrees that these conditions affect [K.H.'s] emotional, cognitive and volitional capacities so as to predispose him to commit sexually violent offenses. He agrees that the static instrument, which involves convictions, underestimates the risk for re-offending. He agrees that [K.H.'s] clear pattern of abusive behavior can play a part in his cycle of sex offending. He also agrees that [K.H.'s] use of controlled dangerous substances can lower inhibitions. He agrees that anti-social personality traits, combined with sexual pathology, [are] . . . elevating risk factor[s].

It is unclear how [Dr. Friedman] reached his conclusion without considering the matters which so clearly establish a high risk for re-offense. Although he testified that [K.H.] would not be a high risk even without [c]ontrolled [s]upervision for [l]ife, he recognizes [that K.H.'s] impulse control problems and his deviant urges to paraphilic acts . . . demonstrate [that K.H. has] significant difficulty controlling his sex offending conduct.

The judge found that the State had proven by clear and convincing evidence that K.H. "suffers from abnormal mental conditions that influence his cognitive, emotional and volitional capacities so as to predispose him to commit sexually violent offenses." The judge also found that it was clear that K.H. "suffers from a personality disorder that elevates the risk presented by his sexual pathology" and "he has serious difficulty controlling his sexually violent behavior as he has demonstrated by his criminal history."

The judge therefore concluded that it was highly likely that K.H. would re-offend in a sexually violent manner if he is not confined at the STU pursuant to the SVPA. The judge entered an order dated January 18, 2007, in conformity with her findings. This appeal followed.

On appeal, K.H. raises the following issues for our consideration:

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

POINT TWO: 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 K.H.

POINT THREE: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.H. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. Standard of Review

B. The State Failed To Prove The Lack Of Control Requirement Of W.Z

We have thoroughly reviewed the record in light of these contentions. We are convinced that K.H.'s arguments are without merit. We therefore affirm substantially for the reasons stated by Judge Perretti in the decision that she placed on the record on January 17, 2007. R. 2:11-3(e)(1)(A). We add the following brief comments.

The scope of our review of a final order of commitment under the SVPA is narrow. V.A., supra, 357 N.J. Super. at 63. We will reverse such a determination only when the commitment reflects a clear abuse of discretion. Ibid. (citing In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Furthermore, the judge's findings of fact are binding on appeal unless "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

As stated previously, Judge Perretti found that the State had proven by clear and convincing evidence that K.H. suffers from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend. In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The judge's findings are supported by sufficient credible evidence. We therefore find no "clear abuse of discretion" in ordering K.H.'s civil commitment pursuant to the SVPA. J.P., supra, 339 N.J. Super. at 459.

K.H. argues, however, that his involuntary commitment violates the ex post facto lawmaking in violation of the Constitution of the United States and the New Jersey Constitution. He maintains that the SVPA is not a civil measure but, rather, an enactment that allows for the imposition of additional punishment for his criminal offense. K.H. argues that he has been "re-sentenced" and "now has a virtual life sentence[.]" We disagree.

The Legislature's intention underlying the SVPA is "regulatory." State v. Bellamy, 178 N.J. 127, 138 (2003). The impact of a commitment under the Act may be "onerous" and have "some punitive impact," but those effects are the "'inevitable consequence of the regulatory provisions.'" Ibid. (quoting Doe v. Poritz, 142 N.J. 1, 46 (1995)). The impact of the SVPA "is not solely attributable to a punitive legislative intent." Ibid. (citing Doe, supra, 142 N.J. at 46). "Moreover, commitment pursuant to the [SVPA] is not a direct consequence of pleading guilty to a predicate sexual offense because commitment does not automatically flow from the conviction." Ibid.

Therefore, the SVPA does not impose punishment, and a commitment under the Act does not constitute unconstitutional eX post facto lawmaking. See Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 2085, 138 L.Ed. 2d 501, 519 (1997) (holding that the Kansas sexually violent predator statute is not punitive and does not violate the ex post facto clause of the United States Constitution).

K.H. also argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2002), limits the use of hearsay evidence in SVPA proceedings. Again, we disagree. In Blakely, the Court "ruled that a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury." State v. Natale, 184 N.J. 458, 465-66 (2005). Blakely does not apply to SVPA civil commitment hearings.

K.H. also argues that Judge Perretti erroneously relied upon inadmissible hearsay in rendering her decision in this matter. K.H. contends that the judge erred by considering certain statements in the presentence investigation reports, police reports, and previous psychological and psychiatric evaluations. We disagree.

As a general matter, a trial judge in an SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on such evidence and the evidence is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004); A.X.D., supra, 370 N.J. Super. at 202. We are satisfied from our review of the record that Judge Perretti adhered to these principles in rendering her decision in this case.

K.H. also argues that the State failed to prove the "lack of control requirement" of W.Z. K.H. maintains that the judge erred by accepting Dr. McAllister's finding that he was highly likely to re-offend in a sexually violent manner, and should have instead accepted Dr. Friedman's conclusion that he only poses a moderate risk of re-offense. K.H. argues, among other things, that Dr. McAllister's testimony "ignored the dictates of the Static-99." Again, we disagree.

Clearly, Judge Perretti was not bound to accept Dr. Friedman's testimony because it was based in part on K.H.'s results on the Static-99. That test is one factor that may be considered by the trial judge when determining whether an individual should be committed pursuant to the Act. R.S., supra, 339 N.J. Super. at 539. Moreover, the judge in an SVPA case may accord the actuarial assessments whatever weight the judge deems appropriate, or reject those assessments. Id. at 539-40. We are satisfied that Judge Perretti provided sound reasons for rejecting Dr. Friedman's testimony.

We have considered K.H.'s other contentions and find them to be of insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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