On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-444-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...