On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-152-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011 - Decided Before Judges Carchman and Nugent.
D.K.R. appeals from the April 1, 2011 judgment that continued his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that the State failed to prove by clear and convincing evidence that he requires continued involuntary commitment as a sexually violent predator. He also contends that his review hearing was flawed because he was not presented with the right to confront witnesses against him. We reject his contentions and affirm.
The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25(c)). 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.
If a person has been committed under the SVPA, a court is required to conduct an annual review hearing to determine whether the person should remain in treatment or be released. N.J.S.A. 30:4-27.35. The State must prove by clear and convincing evidence "that the individual poses a threat to the health and safety of others" because of his or her likelihood of engaging in sexually violent acts due to a "serious difficulty in controlling his or her harmful behavior such that it is highly likely" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
Indisputably, D.K.R. has a history of sexually violent behavior. He was convicted of rape in 1971 and 1978. From March 1981, shortly after his release from prison on the 1978 conviction, through January 1984, he repeatedly molested his stepchildren. Arrested on nine counts of first degree aggravated sexual assault and three counts of second degree sexual assault, defendant subsequently pled guilty to seven counts of aggravated sexual assault and two counts of sexual assault. The court sentenced defendant on August 13, 1984, to an aggregate prison term of thirty years with fifteen years of parole ineligibility, the sentence to be served at the Adult Diagnostic and Treatment Center at Avenel.
On January 31, 2001, the State filed a petition for civil commitment under the SVPA, citing D.K.R.'s 1984 nine-count conviction as the predicate offense. The Law Division subsequently granted the State's petition and committed D.K.R. Thereafter, periodic reviews were conducted and D.K.R.'s civil commitment was continued after each review.*fn1
The present review was conducted on March 31 and April 1, 2011 before Judge James F. Mulvihill. The State produced expert testimony from psychiatrist Roger Harris, M.D. and psychologist Deborah Roquet, Psy.D. D.K.R. produced expert testimony from psychologist Christopher Lorah, Ph.D. The experts' reports were admitted into evidence. When the State moved D.K.R.'s STU progress notes into evidence, defense counsel objected because D.K.R. "hasn't been afforded the opportunity to adversarially test or confront any of those things." Judge Mulvihill admitted the progress notes as records of regularly conducted activity, N.J.R.E. 803(c)(6), subject to hearsay limitations.
The parties stipulated that Dr. Harris was an expert in the field of psychiatry. Based on his clinical interview, the presentence investigation reports, reports from the Treatment Progress Review Committee (TPRC), progress notes, and reports of forensic evaluations, Dr. Harris diagnosed D.K.R. as having a "very strong [a]ntisocial [p]ersonality [d]isorder, . . . pedophilia, boys and girls not exclusive[,] . . . rule out paraphilia coercion, and an alochol abuse in remission." After reviewing defendant's history of sexual offenses, Dr. Harris explained that D.K.R. commencing a criminal episode within six weeks of his release from prison on a previous conviction for a sexual offense reflected a "very strong and persistent antisocial attitude and behavior that started at a remarkably early age of nine years old." Dr. Harris believed the short duration between D.K.R.'s release from prison and next sexual offense, and the sexual offenses themselves, were "really just an extension of the level of his antisociality." Dr. Harris testified that D.K.R. appeared to "have a low threshold to act to satisfy his sexual drive and his sexual arousal[,]
[w]hether that be children for which he has a parental role in protecting, or just using other opportunities . . . ."
Dr. Harris next explained that defendant attempted to minimize his past acts of sexual violence; consequently, [i]t's going to short-circuit his treatment [in the STU], and treatment is at such a loggerhead that I suggested that the treatment team focus not on the instant offense, but on the other offenses, as a way to help [D.K.R.] build a bridge in treatment . . . and make some progress in that area, which could also address his antisocial attitudes and behaviors, which clearly continue to the present time.
Dr. Harris also explained that D.K.R. did not speak well of his treatment providers in the STU and D.K.R. claimed they were not doing their job. According to Dr. Harris, D.K.R's attitude toward his treatment providers was an example of how his personality was short-circuiting his treatment. Similarly, although D.K.R.'s attendance at therapy and group sessions was good, his participation focused largely on the people in his group, thereby helping ...