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In re Civil Commitment of B.Z.C. SVP-448-06

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 12, 2009

IN THE MATTER OF THE CIVIL COMMITMENT OF B.Z.C. SVP-448-06

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-448-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 10, 2009

Before Judges Winkelstein and Fuentes.

B.Z.C. appeals from a June 25, 2007, order committing him to the State of New Jersey Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises the following points for our consideration:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR. (U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, Par. 1) (Partially Raised Below)

A. The State Failed to Proffer the Testimony of a Treating Psychiatrist (Not Raised Below)

B. The State Failed to Provide Clear and Convincing Evidence of A Present Serious Difficulty In Controlling Sexually Violent Behavior

POINT II

THE TERMS AND IMPLEMENTATION OF NEW JERSEY'S SVPA DENIED APPELLANT'S RIGHT TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS, AS WELL AS EQUAL PROTECTION AND CONFRONTATION (U.S. Const. Amend. VI, XIV; N.J. Const. Art 1, Par. 1) (Not Raised Below)

A. Departures from and Punitive Implementation of the Act

B. The Absence of the Right to Trial by Jury and Burden of Proof Beyond a Reasonable Doubt in Our SVPA Cannot Withstand Constitutional Scrutiny Due to the Statute's Contents and Implementation

We affirm.

A criminal defendant who has been convicted of a predicate offense to the SVPA may be subject to an involuntary civil commitment when 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. To warrant commitment, the State must prove that "'it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.'" In re Civil Commitment of J.M.B., ___ N.J. ___ (2009) (slip op. at 4) (quoting In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002)). The court must address the individual's "present serious difficulty with control over dangerous behavior." W.Z., supra, 173 N.J. at 132-33. The State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." Id. at 133-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Here, the State has met its burden.

At the time of his hearing before the trial court in June 2007, B.Z.C. was sixty years old. In October 1988, V.C. reported to the State police that her twelve-year-old daughter, D.R., had been sexually assaulted by B.Z.C., her uncle. D.R. claimed that appellant twice offered her money to show him her genitals, and he masturbated where she could see him. She claimed that on one occasion, he fondled her breasts and genital areas and, while failing to penetrate her, he did ejaculate.

In an interview with Dr. Luis Zeiguer, a psychiatrist employed by the Division of Mental Health Services who works at the STU, B.Z.C. admitted that he molested D.R. from the time she was nine years old until she was twelve years old; his behavior included cunnilingus. Consequently, in September 1989, he pleaded guilty to second-degree sexual assault, and the court imposed a four-year prison term.

In 1993, B.Z.C. pleaded guilty to two counts of second-degree sexual assault, receiving concurrent five-year prison terms, for sexually molesting his step-daughters, K.V. and E.C. The victims reported to the police that B.Z.C. began abusing them when they were under ten years old, and he continued to do so for more than a year. The abuse included fondling their breasts and vaginal areas; performing oral sex on K.V.; digital penetration; masturbating in their presence; and offering E.C. money in exchange for sex. In an interview with Dr. Zeiguer, B.Z.C. admitted his offenses.

In August 2000, B.Z.C. committed the predicate offenses for his civil commitment. He pleaded guilty to first-degree aggravated sexual assault on his five-year-old step-granddaughter, having rubbed her vagina and digitally penetrated her. The court imposed a ten-year prison term with a five-year period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel.

Over the years, various mental health professionals have evaluated B.Z.C. In an interview with Dr. Mark Frank for an ADTC evaluation in 1989, he admitted he knew that what he was doing was wrong, but he could not control his actions. In another interview with Dr. Frank, in March 1993, he acknowledged that he felt guilty and embarrassed while he molested his step-children, and he admitted having sexual fantasies about his victims and masturbating while thinking of them.

In a March 13, 2001 interview for possible ADTC treatment, he admitted to fondling his step-granddaughter's vagina, but he minimized his responsibility. He knew what he did was wrong, but he claimed that the five-year-old victim grabbed his hand and placed it on her vagina.

B.Z.C.'s therapist prepared a July 31, 2006 ADTC termination report, which indicated that appellant had gained little benefit from his treatment. His therapist believed efforts would be unsuccessful in preventing him from reoffending.

At B.Z.C.'s hearings in June 2007, the State presented the testimony of Dr. Zeiguer and Dr. Natalie Barone, Psy.D., a psychologist. B.Z.C. presented his own expert, Dr. Luis Rosell, Psy.D., a psychologist.

According to Dr. Zeiguer, who relied on personal interviews with B.Z.C., psychological reports and other data, B.Z.C. suffered from pedophilia and a personality disorder with antisocial features. Dr. Zeiguer testified that appellant was aware that what he was doing was wrong, but he rationalized his behavior, believing that he was giving the children an early initiation into sex. The doctor further indicated that B.Z.C.'s personality disorder made him take risks; he was deceitful and manipulative; and he had a reckless disregard for the rights of others. Dr. Zeiguer concluded that B.Z.C. was a "very, very high" risk to sexually reoffend unless securely confined for treatment.

Dr. Barone also interviewed B.Z.C. She based her opinions on the interview, psychological evaluations, clinical certifications and police data. She concluded that B.Z.C. is a pedophile with an arousal pattern to prepubescent females between the ages of five and twelve. She believed that B.Z.C. placed substantial effort in grooming and preparing his victims for his assaults. After several months of ongoing fantasies, he would commit offenses that included fondling, oral sex and digital penetration. He acknowledged committing the sex offenses to the psychologist, but denied digitally penetrating his victims or ejaculating in their presence.

Dr. Barone opined that B.Z.C. was a compulsive sex offender with an irresistible, irrational impulse, which, despite knowing he was wrong, allowed him to act on that impulse without considering the consequences. She diagnosed him with pedophilia, sexually attracted to females, nonexclusive, and personality disorder NOS, with passive aggressive dependent traits. She observed that B.Z.C. committed the 2000 offense after he had registered as a sex offender, and after he had been placed under community supervision for life.

Dr. Barone concluded that appellant was at risk to reoffend against biological relatives and step-relatives, as well as against extra-familial victims. She believed that he continued his deviate arousal despite incarceration and sex offender treatment. He had been undeterred and had not benefited from treatment. Dr. Barone concluded that B.Z.C. was at high risk to sexually reoffend in the foreseeable future.

Dr. Rosell interviewed B.Z.C., and diagnosed him with pedophilia, which affected him cognitively and predisposed him to commit acts of sexual violence. Dr. Rosell explained that B.Z.C.'s actions were exacerbated by his disregard for others, so long as he could satisfy his own needs. Nevertheless, Dr. Rosell opined that B.Z.C. was not likely to engage in acts of sexual violence and did not pose a serious risk for reoffense.

On June 25, 2007, Judge Freedman rendered an oral opinion. After thoroughly reviewing the evidence and B.Z.C.'s history of molesting children, the judge credited the testimony of Dr. Zeiguer, as well as that of Dr. Barone. The judge substantially rejected Dr. Rosell's testimony.

The judge found that, by clear and convincing evidence, appellant suffers from a mental abnormality in the form of pedophilia, which predisposes him to engage in acts of sexual violence. The court referred to Dr. Barone's finding that B.Z.C.'s sexual arousal was "alive and well" and continued to be part of his psychological makeup. The judge further found that it was "[w]ell beyond clear and convincing evidence," that B.Z.C. was highly likely to engage in the same type of conduct in the reasonably foreseeable future.

In reviewing the court's decision, our scope of review is extremely narrow. We defer to the trial court's determination unless the record reveals a clear abuse of discretion. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). Here, we find no abuse of discretion.

The record supports the judge's determination that B.Z.C. suffers from mental abnormalities that predispose him to commit sexually violent acts and that he has serious difficulty with control over his dangerous behavior, rendering him highly likely to reoffend. His deviant sexual behavior, molesting prepubescent girls, has gone unabated, despite years of treatment. He has acknowledged that he is unable to control his urges, and his record bears that out. The court was presented with overwhelming evidence that B.Z.C. is highly likely to reoffend if released from the STU.

B.Z.C.'s remaining arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Appellant claims that the State's burden of proof should be beyond a reasonable doubt. That argument is meritless. The SVPA is remedial, not punitive; a committee is not entitled to a jury trial, and the burden of proof is by clear and convincing evidence, not beyond a reasonable doubt. See State v. Bellamy, 178 N.J. 127, 138 (2003); J.H.M., supra, 367 N.J. Super. at 606-07; N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32(a); see also J.M.B., supra, ___ N.J. at ___ (slip op. at 15, 48).

B.Z.C. complains that the State failed to proffer the testimony of a treatment team psychiatrist, violating N.J.S.A. 30:4-27.30(b). Not so. Dr. Zeiguer is a psychiatrist employed by the Division of Mental Health Services and works at the STU. He is, as broadly defined, a member of the treatment team, as he provides "treatment, supervision or other services" at the STU. See N.J.S.A. 30:4-27.26. Though he may not have provided treatment to B.Z.C., Dr. Zeiguer, as an employee of the Division of Mental Health Services, which provides treatment "appropriately tailored to address the specific needs of sexually violent predators," is a member of B.Z.C.'s treatment team. Indeed, in another case, this court has already concluded as much. See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 26 (App. Div.), certif. denied, 188 N.J. 492 (2006).

We affirm substantially for the reasons expressed by Judge Freedman.

20090312

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