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In re Civil Commitment of Y.C.M. SVP-460-07

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 13, 2009

IN THE MATTER OF CIVIL COMMITMENT OF Y.C.M. SVP-460-07.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-460-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2008

Before Judges Lisa and Alvarez.

Appellant, Y.C.M., appeals from Judge Freedman's August 27, 2007 order committing him to a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Appellant argues that the State failed to prove by clear and convincing evidence that he is subject to commitment under the SVPA. He further argues, for the first time on appeal, that evaluations prepared by non-testifying experts were hearsay, did not comply with N.J.R.E. 703, and should not have been admitted in evidence. We reject these arguments and affirm substantially for the reasons expressed by Judge Freedman in his thorough and well reasoned oral decision of August 27, 2007.

Appellant was born on August 4, 1966, and he is now forty-two years old. He was convicted of two sexual offenses, by virtue of his guilty pleas on October 25, 1990.

The first offense occurred on April 22, 1989, when appellant was twenty-two years old. His victim was a forty-two year-old woman who was a stranger to him. It was dark outside, and appellant was walking the streets. When he saw the victim, L.C., she was walking to work. Appellant immediately thought of raping her. He followed her and grabbed her from behind. L.C. began to scream, and appellant admonished her to stop or he would break her neck.

He dragged her into an alley and demanded she remove her pants. He instructed her: "Get down on your knees, bend over, you're going to get it up the butt." He was unsuccessful in his efforts to penetrate her anally. He then pushed her to the ground so she was laying on her back. He pulled her sweater up over her face and fondled and kissed her breasts. He then engaged in vaginal intercourse with her, during which he said, "You're going to have my baby tonight," and he demanded that L.C. tell him how "good" he was.

Throughout the assault, appellant had his arm around L.C.'s neck and his hand over her mouth. Appellant completed the sexual assault to ejaculation. He then stole $20 and some jewelry from L.C. He ordered her to stay on the ground and not to move. He left the scene. L.C. immediately sought help and reported that she had been raped. However, the identity of her assailant did not become known until after appellant's next offense, when appellant revealed his involvement with L.C. to law enforcement authorities.

The second offense resulting in conviction occurred about seven months later, on January 1, 1990, when appellant was twenty-three years old. His victim was a thirteen-year-old girl, B.H., who was known to him. Appellant was walking with B.H., accompanying her to the hospital where she wished to seek evaluation for a problem she was having with her eye. Appellant suggested a shortcut behind a building under construction. In that location, appellant threw B.H. to the ground, ripped off her clothing, and struck her several times in the head and face with his fist. Appellant told B.H. he would kill her if she moved.

He engaged in forced vaginal intercourse with B.H. for nearly an hour. He later forced B.H. up against a tree and unsuccessfully attempted to penetrate her from behind. In the course of the assault, appellant vaginally penetrated B.H. with the tip of an umbrella, later admitting he did this to inflict pain on B.H. When B.H. attempted to leave, appellant again struck her in the head several times, knocking her to the ground and telling her if she told anyone about the assault he would kill her. According to B.H., appellant attempted to break her neck and, on several occasions during the course of the assault, choked her, cutting off her breathing. During the course of the assault, appellant also digitally penetrated B.H.'s vagina. B.H. was able to get away when a passing car caused a distraction. She went to the hospital emergency room and immediately reported the rape and identified her assailant.

With respect to L.C., appellant pled guilty to first-degree aggravated sexual assault and third-degree criminal restraint. With respect to B.H., he pled guilty to first-degree aggravated sexual assault, third-degree criminal restraint, and third-degree terroristic threats. Based upon a psychological evaluation, it was determined that appellant's sexual conduct was repetitive and compulsive, thus qualifying him for sentencing under the purview of the New Jersey Sex Offender Act.

He was sentenced on March 31, 1991 to consecutive terms of fifteen years imprisonment for each of the two sets of offenses, to be served at the Adult Diagnostic and Treatment Center (ADTC).

Appellant was repeatedly sexually molested as a child. In addition to the two offenses for which he was convicted, appellant was charged with a 1987 aggravated sexual assault, which was presented to the grand jury but no billed. In the course of his sex offender therapy after his conviction, appellant acknowledged that he had committed about four or five other sex offenses, similar to those for which he was convicted, but for which he was never arrested. Appellant has a history of substance abuse. He is HIV positive. He had a history of using the services of female, male, and transgender prostitutes. He compulsively masturbates, about three times per day. He has admitted to auditory hallucinations directing sexual compulsions. He has acknowledged finding himself in possession of women's clothing without explanation. He sometimes dresses in women's clothing.

Appellant experienced some progress in his sex offender treatment at the ADTC. As he was nearing his potential release, he was transitioning from phase three to phase four in treatment. However, the treatment records revealed a lack of consistency in appellant's response to treatment.

On May 10, 2007, the State filed the petition to civilly commit appellant. A temporary commitment order was entered on May 18, 2007, and Judge Freedman conducted appellant's initial commitment hearing on August 27, 2007.

The State presented two witnesses, both psychiatric experts, Dr. Lawrence A. Siegel and Dr. Michael R. McAllister. Appellant did not testify and did not present any witnesses. With the consent of both parties, Siegel's and McAllister's reports and curricula vitae, as well as many other records and reports, were admitted in evidence. Each of the State's witnesses testified in accordance with their reports and, of course, were subject to cross-examination.

Siegel explained that he reviewed various court documents, police records, ADTC records, and reports of other mental health experts who had evaluated and treated appellant over the years since his conviction. He stated that these are the kind of records customarily relied upon by experts in his field in making evaluations regarding the risk of sexual recidivism.

Siegel interviewed appellant on two occasions, November 22, 2006 and January 24, 2007. He issued his report on February 7, 2007. He made clear in his testimony that his conclusions were his own. He acknowledged that appellant received some benefit from his ADTC sex offender treatment, but concluded the benefit was insufficient to mitigate appellant's high risk of reoffense. Actuarial tests placed appellant in the high-risk category. He found it significant that appellant's degree of sexual arousal was enhanced by causing humiliation and pain to his victims. He also found it significant that appellant was able to complete his sexual act to ejaculation in his assault on L.C., which is evidence that appellant's sexual arousal is not inhibited by the victim's non-consent. This characteristic is consistent with a diagnosis of Paraphilia, NOS non-consent.

Siegel went even further in his diagnosis, concluding that appellant suffered from Sexual Sadism, a paraphilic disorder. Siegel based this opinion on the long term of appellant's aberrant sexual thoughts and actions, his sexual arousal in humiliating and causing pain to his victims, and the fact that he inflicted a greater degree of violence than required to gain compliance. Siegel also diagnosed appellant with Antisocial Personality Disorder. In Siegel's opinion, individuals with these conditions tend to act upon their deviant sexual urges at a high rate because of their propensity to disregard the rights of others and the consequences of their conduct.

Siegel opined that "were [appellant] unfettered and released to the community, he would continue to have impulses to act in an improper manner and he would have significant problems controlling his impulses through a combination of factors, including the tendency to abuse substances, his anti-social propensities, and his underlying deviant drive." Siegel further opined that appellant "would be highly likely to reoffend."

McAllister reviewed and relied upon materials similar to those utilized by Siegel. Like Siegel, McAllister made clear that his opinions were his own. McAllister attempted to interview appellant on three occasions. The first interview, on June 1, 2007, lasted only fifteen to twenty minutes. There was an interruption because of a malfunction with the tape recorder. When McAllister resumed the interview, appellant resisted discussing sexual issues further, stating that his attorney advised him not to do so. McAllister again attempted to interview appellant on August 16, 2007, but appellant refused, again stating he was doing so on the advice of his attorney. On August 22, 2007, McAllister began interviewing appellant, but appellant declined to discuss his sexual triggers or sexual offense cycle. He said he had "already discussed it." He refused to go on with the interview, and terminated it after only about eight minutes. He was uncooperative and, in McAllister's view, deliberately attempted to evade discussion of treatment, his treatment progress, and his sexual deviance.

McAllister's diagnosis included Paraphilia, NOS and Personality Disorder, NOS. McAllister also acknowledged that appellant obtained some benefit from his ADTC sex offender treatment, but concluded that appellant did not demonstrate an ability or willingness to understand his sexual offense cycle. Until that level of understanding is achieved, interventions to control and manage deviant sexual urges cannot be successfully implemented.

McAllister opined that the combination of the these psychiatric diagnoses, combined with substance abuse problems, caused and will continue to cause appellant serious difficulty controlling his sexually offending behavior. When asked whether he would characterize appellant's risk to sexually reoffend in the foreseeable future to be highly likely, McAllister said "that he is at extreme risk to act on his deviant sexual urges if he were not in a highly supervised setting."

Judge Freedman credited both of the State's witnesses. He made very clear that although he reviewed all of the documents in evidence and referred to them in the course of his analysis, he did so only to support the opinions of the experts who testified, and to explain, at least in part, why he found those experts credible. He made it clear that he was not relying on any of the documentary reports to support his opinion. The judge did not find a conflict between the diagnoses rendered by the two experts. He found that either the Sexual Sadism diagnosis rendered by Siegel or the more conservative Paraphilia, NOS non-consent diagnosis rendered by McAllister were supported by the record and consistent with recognized psychiatric standards and criteria. Likewise, either the Antisocial Personality Disorder, as diagnosed by Siegel, or the more conservative diagnosis of Personality Disorder, NOS, as rendered by McAllister, are well supported.

In reaching his final conclusions, the judge noted that even if the competent and credible evidence before him was viewed most conservatively, the State carried its burden of clearly and convincingly establishing that appellant meets the criteria for confinement under the SVPA. The judge said:

[E]ven if I assume the 5 on the Static-99 and a -- that he only committed the two offenses for which he was convicted, and assume that the diagnosis is a paraphilia N.O.S. non-consent and not the sadistic traits and not sexual sadism, and a personality disorder N.O.S. and not antisocial personality disorder -- all of that, which were the arguments made by counsel, don't change the outcome. . . .

. . . It's very clear to me that [appellant] has a very high likelihood of engaging in this conduct again if he were released. And taking into account the nature of what he "tends to do" -- quote, unquote -- to use the language of the -- of the W.Z. case, which is very, very serious, particularly in light of his health status as an H.I.V.-positive person, that there is no question about his dangerousness. It's extreme and high.

And I so find by clear and convincing evidence he would have serious difficulty controlling his sexually violent behavior and he would be very highly likely to engage in the conduct again if released. And, therefore, the state has met its burden to [prove] by clear and convincing evidence that [appellant] needs to be -- commitment needs to be continued.

The one -- I think the one aspect I didn't mention is the aging. And I'm satisfied that at age 40, whatever -- if there is any reduction of risk because of age, it's minimal for the reasons indicated by Dr. Siegel.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence or other criminal disposition, when he or she "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.

As defined by the statute, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Id. at 127.

At the commitment hearing, the State must prove "a 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." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. 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)). That determination will be subject to modification only where the record reveals a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvas the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Based upon our review of the record, we are satisfied that Judge Freedman's findings are amply supported by the evidence and that he correctly applied the law in reaching his ultimate determination.

We next address appellant's claim that the admission of evaluation reports prepared by non-testifying experts was improper. There was no objection at trial, and therefore we are guided by the plain error standard and will not reverse unless any error was "clearly capable of producing an unjust result."

R. 2:10-2. We find no error here, let alone plain error. Experts are permitted to rely upon facts or data of a type reasonably relied upon by experts in the field in forming their opinions. N.J.R.E. 703; J.H.M. supra, 367 N.J. Super. at 612. The evidence reasonably relied upon by experts in forming their opinions need not be admissible. J.H.M., supra, 367 N.J. Super. at 612 (citing State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003)). However, any hearsay evidence relied upon is not admissible substantively to prove the truth of the matter asserted. Ibid.

In this case, Siegel and McAllister both testified, without contradiction, that the prior evaluation reports were of the type customarily relied upon by experts in making evaluations such as those they were called upon to make with respect to appellant. Both experts testified that their opinions were their own. They did not adopt opinions of prior evaluators. They used historical and factual information to aid them in forming their opinions. The judge clearly did not adopt any of the opinions contained in the hearsay reports, but utilized them for a proper limited purpose. There was no impropriety in the admission of these reports for the purposes for which they were utilized.

Affirmed.

20090113

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