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In the Matter of the Civil


February 22, 2011


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-444-06.

Per curiam.



Submitted: January 26, 2011 - Decided: Before Judges Cuff and Fasciale.

W.X.G. appeals from an order committing him involuntarily to the State of New Jersey Special Treatment Unit (STU), a facility designated for the care, custody, and treatment of sexually violent predators, pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.

W.X.G. is thirty-three years old and has an extensive history of committing sexual- and assault-related offenses. He pled guilty to two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b. He admitted during the plea proceeding that he touched the vaginal area of two different girls, each between five and six years old, while they participated in a bible school program at which he volunteered. Mark Frank, Ph.D., examined W.X.G. to determine if he was eligible for sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (SOA); R. 3:21-3. W.X.G. admitted culpability to Dr. Frank, stated that he had sexually abused about 100 other prepubescent victims, and explained to the doctor that he had fantasies of raping and murdering adult women. Dr. Frank diagnosed him with pedophilia and opined that W.X.G. was eligible for sentencing under the SOA because his conduct was characterized by a pattern of repetitive and compulsive behavior.

At sentencing, defense counsel did not object to the presentence report and acknowledged that W.X.G. had been candid with Dr. Frank. W.X.G. admitted to the sentencing judge that he was "sick" and needed help. The judge sentenced W.X.G. under the SOA to an aggregate ten-year prison term to be served at the Adult Diagnostic and Treatment Center (ADTC). Prior to W.X.G.'s release from ADTC, the State filed a petition for civil commitment under the SVPA based on the opinions of two psychiatrists, Anna Rossi, D.O. and Marina Moshkovich, M.D. The judge temporarily committed W.X.G. to the STU and scheduled a commitment hearing.

At a one-day hearing, the State presented testimony from psychiatrist Luis Zeiguer, M.D. and psychologist Natalie Barone, Ph.D. The State offered various exhibits relied on by Drs. Zeiguer and Barone, including the criminal pre-sentence report, police reports, psychiatric and psychological evaluations, and the civil commitment petition and related certifications.

W.X.G.'s counsel had "no objections [to those exhibits] beyond the usual hearsay objections." The judge overruled the general objection and stated that "these documents . . . unless [they] come[] in for some other reason, such as the judgment of conviction . . . cannot be used to prove the truth of the facts themselves." At the hearing, W.X.G. presented no witnesses, but introduced into evidence other records reviewed by Drs. Zeiguer and Barone, such as the treatment and disciplinary records from ADTC.

On appeal, W.X.G. focuses primarily on the information Drs. Zeiguer and Barone used to form their expert opinions. W.X.G. contends that they relied on hearsay contained in numerous documents and that he was denied the right to cross-examine every declarant. He also contends that his counsel was ineffective because she failed to depose the declarants before the hearing began.

Dr. Zeiguer testified that he examined W.X.G. and relied on numerous documents in rendering his opinions. He opined that W.X.G. suffered from a mental abnormality and personality disorder that predisposed him to engage in acts of sexual violence. He stated that W.X.G. is unable to stop himself from engaging in sexual behavior with prepubescent children. W.X.G. told the doctor that his mother and stepfather sexually abused him as a child, and that his mother started him on intravenous heroin when he was six years old. The doctor learned that W.X.G. had a history of convictions for crimes of violence and sex assault. W.X.G. claimed fantasies involving blood, rape, torture, and sadistic acts. Dr. Zeiguer characterized W.X.G.'s risk to re-offend in the foreseeable future as "very high" unless he is confined in a facility for the treatment of sexually violent predators.

Dr. Barone testified that she examined W.X.G. and relied on numerous records in rendering her opinions. She diagnosed him as a pedophile with sexual sadism, poly-substance abuse, antisocial personality disorder, and borderline personality disorder. W.X.G. also admitted to Dr. Barone that he had an arousal to blood, torture, and women fearing him. She opined that W.X.G. is a "high risk" to re-offend.

The judge found by clear and convincing evidence*fn1 that W.X.G. suffers from a mental abnormality and personality disorder that makes him likely to engage in sexual violence. The judge concluded that W.X.G. has serious difficulty controlling his sexually violent behavior, is likely to re-offend within the foreseeable future if he is not confined to a secure facility for control, care, and treatment, and that W.X.G. is a sexually violent predator within the meaning of the SVPA.

We begin by addressing W.X.G.'s contention that the principles espoused by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) apply to civil commitment proceedings. In Crawford, the Supreme Court held that, in a criminal trial, hearsay testimony is barred under the Confrontation Clause of the United States Constitution unless witnesses are unavailable and defendant has had a prior opportunity to cross-examine those witnesses. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. at 203. This restriction on the use of hearsay testimony exists regardless of any finding of reliability. Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. at 203.

We have already rejected the argument that Crawford should be extended to SVPA proceedings in In re Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004), where we observed that:

We have found no case in any jurisdiction that has extended Crawford to a civil commitment proceeding where the burden of proof is less than beyond a reasonable doubt. The Supreme Judicial Court of Massachusetts has specifically declined to do so. Commonwealth v. Given, 441 Mass. 741, 746-47, 808 N.E. 2d 788, 794 n.9 (refusing to apply Crawford to civil commitment case in which the Sixth Amendment confrontation clause does not apply) [, cert. denied, 543 U.S. 948, 125 S. Ct. 366, 160 L. Ed. 2d 264 (2004).]

See also In re Det. of J.S.A., 174 P.3d 103, 104 (Wash. Ct. App. 2007) (the right to cross-examine an adversarial witness is available only to criminal defendants, not to defendants at a civil commitment proceeding); People v. Angulo, 30 Cal. Rptr. 3d 189, 201-02 (Ct. App.), review denied, 2005 Cal. LEXIS 9255 (2005) (agreeing with Given and explaining that Crawford "never discussed the due process right of confrontation that is applicable in civil [commitment] proceedings"); Walker v. Hadi, 611 F.3d 720, 724 (11th Cir.) (Florida state court properly admitted testimonial hearsay at civil commitment proceeding since it was "under no obligation to widen the scope of Crawford"), cert. denied, __ U.S. __, 131 S. Ct. 530, 178, L. Ed. 2d 390 (2010).

W.X.G. argues that the judge erred by overruling his general objection to the "usual hearsay" contained within the documents on which the experts relied. Evidentiary decisions of a trial judge are reviewed utilizing the abuse of discretion standard. State v. Brown, 170 N.J. 138, 147 (2001). We will affirm the trial court's decision unless it was "'so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We discern no abuse of discretion by the judge.

Generally, a trial judge in a SVPA hearing may consider hearsay in order to evaluate the credibility of expert testimony, if the expert based his opinion on such evidence and it 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); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612-13 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). "Thus, hearsay statements upon which an expert relies are ordinarily admissible provided they are of a type reasonably relied upon by experts in the field."

Vandeweaghe, supra, 351 N.J. Super. at 480. The hearsay, however, is not admissible to establish the truth of the statement. Ibid.

Moreover, our Supreme Court has determined that presentence reports relied upon by testifying experts in an SVPA commitment hearing are admissible since these documents are "the type of evidence reasonably relied on by psychiatrists in formulating an opinion as to an individual's mental condition." In re Commitment of J.M.B., 197 N.J. 563, 597 n.9 (citations omitted), cert. denied, __ U.S. __, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). See also State v. Eatman, 340 N.J. Super. 295, 301-02 (App. Div.) (psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition), certif. denied, 170 N.J. 85 (2001).

The doctors performed forensic evaluations to determine whether W.X.G. qualified as a sexually violent predator. They testified that the documents on which they relied to render their opinions are of the type reasonably relied on by experts in the field. Both doctors reached their own independent opinions, and each described how they used the information they reviewed. Dr. Zeiguer stated he focused on what the other professionals directly observed through their interaction with W.X.G. Dr. Barone looked for inconsistencies in the various reports she reviewed.

Despite her general objection to hearsay contained in the documents, defense counsel tested the weight of their opinions and cross-examined the doctors using many of the documents they reviewed. She questioned Dr. Zeiguer using the pre-sentence report, Dr. Rossi's termination report, and treatment and disciplinary ADTC reports. She attempted to impeach Dr. Zeiguer's credibility by establishing that he did not verify information in the pre-sentence report and had not obtained either school or social security records. Defense counsel questioned Dr. Barone concerning the treatment notes, incident reports, and reports of Dr. Rossi. Neither doctor adopted the opinions of any declarant.

The scope of appellate review of a trial court's decision in a civil commitment proceeding is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

An involuntary civil commitment can follow the 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. For this to occur:

[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 re[-]offend. [In re Commitment of W.Z., 173 N.J. 109, 132 (2002).]

The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will re-offend by clear and convincing evidence. Id. at 132-34. See also In re J.H.M., supra, 367 N.J. Super. at 607-08. Here, there was no abuse of discretion.

Regarding the claim of ineffective assistance of counsel, that argument is best reserved for presentation in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992).


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