On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-417-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Fuentes and Chambers.
C.L. appeals from the order of May 19, 2006, committing him to the State of New Jersey Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that his commitment should be reversed because the State's expert witnesses and the trial court improperly relied on hearsay evidence, unproven allegations, and the opinions of non-testifying experts in reaching their conclusions. We conclude that the decision did not rely on impermissible hearsay evidence and affirm.
The SVPA provides for the civil commitment of a sexually violent predator, N.J.S.A. 30:4-27.32, defined as a person who has committed a sexually violent offense (the predicate offense) and who has "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. In the commitment proceedings, the State must prove "by clear and convincing evidence that the individual poses 'a threat to the health and safety of others if he or she were found . . . to have serious difficulty in controlling his or her harmful behavior such 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 4-5) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)) (alteration in original).
C.L.'s predicate offense was a conviction for aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), due to an incident that occurred on November 15, 2002, when C.L. was nineteen years old. The victim of this assault was an acquaintance who was giving him a ride in her car. When providing the factual basis for this guilty plea, C.L. admitted that he grabbed the victim around the neck in a choke hold, straddled her, and touched her breasts for his sexual satisfaction. The victim managed to escape the attack when the car began to roll. The presentence report indicates that the victim thought C.L. was going to kill her and that C.L. was smiling and looked happy during the attack. C.L. was found to be a repetitive and compulsive sex offender and under N.J.S.A. 2C:47-3, was sentenced to a term of four years at the Adult Diagnostic and Treatment Center (ADTC) for this offense. C.L. has told mental health professionals that he had intended to kill the victim.
C.L.'s only other charge involving criminal sexual conduct involved a juvenile offense. He was charged with criminal sexual conduct for fondling his cousin over a number of years while she was sleeping.*fn1 C.L. also cut his cousin's underpants in order to view her vagina while she was sleeping, and some of her underwear was found in his room which he used while masturbating. By the time the cousin reported this conduct to the authorities, she was sixteen and C.L. was seventeen years old. The charge was downgraded to a simple assault. C.L. was adjudicated a juvenile delinquent and sentenced to one year probation. Approximately one month after his probation ended, C.L. committed the predicate offense.
C.L. has a history of psychiatric and behavioral disorders. He has received inpatient psychiatric treatment on three occasions. When a teenager, he would cut his wrists and upper arms. He has on occasion reported hearing voices. He has reported having rape fantasies, and indicated that he was the victim of sexual abuse when a minor. As a juvenile, he received inpatient substance abuse treatment.
At the commitment hearing held pursuant to N.J.S.A. 30:27-28(g) and -27.29, the State presented the testimony of two mental health professionals, Dr. Michael McAllister, a psychiatrist, and Dr. Brian Friedman, a psychologist. Both experts reviewed substantial records, including records from the court, ADTC, STU, and various expert reports, and interviewed C.L. Dr. Friedman also administered tests to C.L.
Dr. McAllister concluded that C.L. suffers from a sexual perversion that includes paraphilia (coercive sexual contact), frotteurism (surreptitiously touching others for sexual gratification), and fetishism, and the Doctor noted the need to exclude sexual sadism. Although he found C.L. to be "extremely charming [and] very, very disarming," Dr. McAllister nonetheless found that C.L. had a personality disorder with borderline and antisocial features. He explained that C.L.'s history of substance abuse, when combined with his personality disorder, could lead to a deterioration that would result in worsening impulse control and a greater risk of yielding to sexual urges. Dr. McAllister concluded that C.L.'s risk to re-offend was "extremely high."
Dr. Friedman diagnosed C.L. with paraphilia, fetishism, a borderline personality disorder, and an antisocial personality disorder. The Doctor indicated that alcohol abuse and sexual sadism needed to be ruled out. Due to C.L.'s deviant arousal pattern and severe personality disorder, Dr. Friedman ...