November 12, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF C.E.G. SVP 452-07
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-452-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Reisner and Yannotti.
C.E.G. appeals from an order dated September 7, 2007 finding him to be a sexually violent predator and committing him 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.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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(b). "[T]he State must prove that 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Having outlined the applicable law, we turn to the facts of this case. To summarize his history of criminal convictions, from the time he was eighteen to the time he was forty-two, C.E.G. attempted to anally penetrate a three-year old girl in Virginia in 1980; tried to rape a twenty-seven year old female neighbor in 1995; and molested a thirteen-year old boy in 2004. He was also involved in at least two non-sexual offenses in which he was armed with a gun. C.E.G. spent his prison sentence for the 2004 offense in the New Jersey State facility for sex offenders at Avenel (ADTC). While at ADTC, he made little progress in treatment, "did not acknowledge his sexually inappropriate behavior, and he continued to minimize or deny the offenses."
Before C.E.G. was released from ADTC, the State sought to have him civilly committed under the SVPA. C.E.G. refused to be interviewed by either of the State's experts who attempted to evaluate him prior to the SVPA commitment hearing, and he declined to appear at the hearing. The State nonetheless presented testimony from both of those experts, Dr. Evan Feibush, a psychiatrist, and Dr. Brian Friedman, a psychologist.
Dr. Feibush opined that C.E.G. was "an untreated sex offender" who was highly likely to reoffend if released. He diagnosed C.E.G. as having "paraphilia not otherwise specified and personality disorder not otherwise specified with antisocial features." Feibush opined that the length of time over which C.E.G. had committed the offenses was significant, as was C.E.G.'s inability to acknowledge his conduct, and his lack of progress in treatment:
This is an individual who engages in illegal acts on a repeated basis. He is impulsive, he's aggressive, he shows reckless disregard for the safety of others, and there's a lack of remorse. And the repeated behaviors - one of the core features of a personality disorder is the inability to learn from one's mistakes. And . . . [according to C.E.G., he] didn't really commit any of these sexual offenses. They were all mistakes, they were misunderstandings, they were consensual interactions. So if in one's own mind if they've done nothing really wrong, how is one supposed to learn from their mistake?
Feibush also testified that he scored C.E.G as highly likely to reoffend on the Static 99, an actuarial test, although that was only one factor in his overall assessment.
Like Dr. Feibush, Dr. Friedman arrived at a diagnosis based on a review of C.E.G.'s records, because C.E.G. would not talk to him. He also diagnosed C.E.G. as having paraphilia NOS and anti-social personality disorder. In reaching his diagnoses, Friedman considered the length of time over which C.E.G. had been offending, the different types of victims and the circumstances of the offenses:
He's offended against male and female victims. . . . He has offended while on supervision. He has failed to register after being convicted of sex offenses. He has re-offended after receiving sanctions on numerous occasions for sexually violent behavior.
. . . So basically [C.E.G.] has thus far shown that he has not learned how to control his sexually aggressive behavior.
Friedman also found it significant that even when C.E.G. was married and had a source of consensual sex, he still sought out non-consensual sex. Freidman opined that C.E.G. "epitomizes in many ways the kind of versatile criminal psychopath." Friedman agreed with Feibush that C.E.G. was "an untreated sexual offender" and that paraphilia would not "remit" without treatment. He further explained in detail why C.E.G. was highly likely to reoffend if released.
On September 7, 2007, Judge Perretti rendered an oral decision concluding that C.E.G. met the criteria for civil commitment under SVPA. She found that the first criterion under the statute had been met: C.E.G. committed three violent sexual offenses. Referring to a record of the Virginia Criminal Court, the judge noted that C.E.G. was convicted of indecent liberties and sentenced to five years in prison. Although C.E.G. initially gave a statement of the incident that matched the description given by the victim's mother, in later interviews he minimized the incident. He claimed that he exposed himself to the victim and it was simply a mistake. Subsequently, he explained that "all he did was being alone in the room with the child."
The trial judge next referred to C.E.G.'s second conviction for felony attempt to commit sodomy. The judge noted that C.E.G. has always maintained that the incident involved consensual sex. However, the judge concluded that his version of the incident was not accepted by the jury since he was found guilty.
The judge next addressed C.E.G.'s 2005 conviction resulting from a guilty plea of endangering the welfare of a child. The court noted that despite C.E.G.'s guilty plea, he has continually made inconsistent statements about the nature of the incident. During a mental status evaluation with Dr. Murtha, C.E.G. claimed that he did not recall the incident and denied any interaction with the victim. He later attributed his memory lapse to being under the influence of drugs at the time of the incident. When examined for his sentencing eligibility at ADTC, he informed Dr. LoBiondo that the boy came to his apartment and wanted to borrow a chess game. He did not want the victim to enter his apartment, so he "grabbed him and brushed him outside his pants." He also claimed that the allegations against him were retribution from the victim's mother for his threat to report her to the Division of Youth and Family Services.
Judge Perretti concluded that C.E.G. did not undergo any meaningful treatment at ADTC so as to consider his time there a mitigating factor. C.E.G.'s attendance was fair, but he was also dropped from modules for absenteeism, he did not disclose any details of his offenses, and his feedback consisted of comments intended to be jokes. C.E.G. also regularly denied the validity of his sex convictions.
Judge Perretti found the unrebutted testimony of Drs. Friedman and Feibusch persuasive. She noted that both experts laid an adequate foundation for the use of documents reasonably relied on by others in the profession. She found that although they considered the reports of other psychologists and psychiatrists, the experts independently made their diagnoses.
Based on the evidence, Judge Perretti concluded that C.E.G. was a sexually violent predator subject to civil commitment under SVPA:
He suffers from abnormal mental conditions and personality disorder that influence his cognitive, emotional, and volitional functioning so as to pre-dispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior. And as a result, is highly likely to commit sexually violent acts in the reasonably foreseeable future if not confined in a secure facility.
On this appeal, C.E.G. raises the following points for our consideration:
POINT I: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.E.G. WAS SUBJECT TO SVP COMMITMENT.
POINT II: THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. FRIEDMAN AND FEIBUSCH BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below).
POINT III: THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL. (Not Raised Below).
Having reviewed the record, we conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Perretti's opinion. We add the following comments.
Our review of a civil commitment judgment 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). We "canvass the record inclusive of the expert testimony to determine whether the findings of the trial judge were clearly erroneous." In re Civil Commitment of J.M.B., 395 N.J. Super 69, 90 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). We must give the "'utmost deference' to the trial judge's determination of the appropriate balancing of societal interest and individual liberty." In re J.M.B., supra, 395 N.J. Super at 89-90. And we will modify a civil commitment judgment only upon a finding that the trial judge clearly abused her discretion. In re Commitment of J.P., 339 N.J. Super 443, 459 (App. Div. 2001).
Measured against these standards, Judge Perretti's decision is unassailable. The State's unrebutted evidence clearly and convincingly established that C.E.G. is an untreated sex offender who suffers from paraphilia and anti-social personality disorder. His history of sex offenses against a variety of victims, as well as the diagnoses of the experts who credibly testified, establish that he is currently incapable of controlling his sexually violent behavior and is highly likely to reoffend if released.
We also find no merit in C.E.G.'s arguments concerning the admission of evidence. While the State introduced reports from experts who previously evaluated C.E.G., Judge Perretti noted for the record that she would not consider diagnoses included in those reports for their truth. See N.J.R.E. 808. Those reports, however, could properly be considered in evaluating the credibility of the testifying experts, to the extent they considered them in arriving at their own independent diagnoses.
See N.J.R.E. 703; In re Civil Commitment of A.X.D. 370 N.J. Super. 198, 202-03 (App. Div. 2004). Nor, having refused to be interviewed, can C.E.G. discredit the testifying experts' opinions on the grounds that they did not interview him. See In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 640 (App. Div. 2009).
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