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In the Matter of the Civil Commitment of L.W.P. Svp-512-08.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF L.W.P. SVP-512-08.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-512-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 3, 2012 -

Before Judges Cuff and Fuentes.

L.W.P. appeals from an order of involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

L.W.P. pled guilty to rape and atrocious assault and battery on April 18, 1980; the victim was an adult female who was raped at knifepoint and stabbed in the left breast. L.W.P. was sentenced to an indeterminate term of ten to twenty years. He was released on parole on November 12, 1985.

On February 4, 1993, L.W.P. pled guilty to kidnapping, burglary and three counts of aggravated assault and sentenced to thirty years in prison with fifteen years of parole ineligibility. The victim was a former girlfriend. L.W.P. was serving this sentence when the State moved for civil commitment under the SVPA.

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. "[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, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

On November 17, 2008, the State filed a petition for civil commitment under the SVPA. In order to be considered a sexually violent predator, an individual must have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually violent offense. Ibid. In this case, the predicate offense is the 1992 aggravated assault of a former girlfriend. L.W.P. also pled guilty in 1980 to rape and atrocious assault and battery. In the latter assault, L.W.P. stabbed the victim with a knife in a breast during the assault.*fn1

L.W.P. was temporarily committed to the STU pending a final hearing. This hearing occurred on May 15, 2009. At the hearing, the State presented the testimony of Pogos Voskanian, M.D., a psychiatrist, and Nicole Paolillo, Psy.D., a psychologist. L.W.P. presented the testimony of Timothy P. Foley, Ph.D., a psychologist.

In an April 27, 2009, report Dr. Voskanian diagnosed L.W.P. with paraphilia NOS*fn2 , rule out (r/o) sexual sadism; alcohol and cannabis abuse with r/o dependence; and personality disorder NOS with anti-social traits. Dr. Voskanian derived his diagnoses from L.W.P.'s file, which included judgments of convictions, pre-sentence reports, police reports, and various psychological evaluations of L.W.P. L.W.P. declined to be interviewed by Dr. Voskanian on two different occasions. The doctor testified the types of reports he utilized are the types experts commonly consider to render an opinion. The paraphilia diagnosis is supported by a history of sexual offenses, all of which led to criminal charges, paired with other non-sexual criminal offenses. The circumstances of the 1979 rape caused Dr. Voskanian to conclude that sexual sadism should be considered. The failure of L.W.P. to participate in the interview, however, precluded a definitive diagnosis.

Dr. Voskanian based his alcohol and cannabis abuse diagnoses from reports including statements by L.W.P. about his use of these substances from an early age. The personality disorder diagnosis is derived from L.W.P.'s lack of remorse, superficiality, and denial of commission of sexual offenses as manifested in the documents reviewed by the doctor.

Dr. Voskanian concluded L.W.P.'s denial of the sexual offenses, alcohol abuse, and lack of remorse, coupled with his criminal history, puts him at a heightened risk to commit another sexual offense, if he is not civilly committed. Dr. Voskanian explained the risk of re-offense as follows: "[L.W.P.]'s sexual offenses suggest an underlying pathology of sexual stimulation and arousal when the victim is in psychological distress and physical pain. [L.W.P.] has no history of treatment for sexual offenses. He remains at high risk to sexually reoffend." He also opined that L.W.P.'s age (then fifty-two, now fifty-five) is not a mitigating factor because L.W.P. has shown such an extreme degree of violence that he would have not mellowed enough at this time.

Dr. Paolillo diagnosed L.W.P. with paraphilia NOS, non-consent, provisional; r/o sexual sadism; alcohol abuse r/o dependence; r/o marijuana abuse; personality disorder NOS with anti-social traits; and R/O antisocial personality disorder.

L.W.P. also refused to speak with Dr. Paolillo, so Dr. Paolillo based her report on the same reports reviewed by Dr. Voskanian.

Dr. Paolillo based her diagnosis of paraphilia NOS, provisional, on the sexual nature of many of L.W.P.'s criminal charges and convictions. She considered the diagnosis "provisional" because she could not diagnose with absolute certainty without an interview. Dr. Paolillo concluded sexual sadism was a possibility because the stabbing incident in 1979 represents classically sadistic behavior. Dr. Paolillo founded the alcohol and drug abuse diagnoses on the history of alcohol and drug abuse outlined in L.W.P.'s file. The diagnoses of personality disorder NOS with anti-social traits and the r/o antisocial personality disorder are founded on L.W.P.'s criminal history and conduct.

Dr. Paolillo performed a Static-99*fn3 analysis of L.W.P. and derived a score of 8. This score suggests a high risk of recidivism once L.W.P. is no longer under direct supervision. Dynamic factors may play a role in the determination of risk on top of a Static-99 assessment. Dr. Paolillo stated that dynamic factors, such as L.W.P.'s impulsive personality and the lack of any "ascertainable build-up" to his actions, put L.W.P. at an even higher risk of recidivism. Moreover, Dr. Paolillo opined that L.W.P. has not benefited from any mitigation of risk that accompanies completion of such treatment because L.W.P. has never taken part in any sex offender treatment.

L.W.P. agreed to an interview with Dr. Foley, who testified on his behalf. He opined that L.W.P. suffers from alcohol abuse and "indications of anti-social traits," but did not render diagnoses of paraphilia, sexual sadism, or personality disorder. He rejected a diagnosis of paraphilia (non-consent), because he believed L.W.P. showed no indications of sexual arousal due to his victim's struggling or fighting. He did not diagnose sexual sadism because he found no indication that the victim's pain and suffering sexually aroused L.W.P. Dr. Foley declined to diagnose a personality disorder because he had no evidence of L.W.P.'s behavior during late adolescence or early adulthood.

Dr. Foley conducted a Static-99 assessment on L.W.P., which he originally scored as a 5 but later amended to 7. Regarding additional dynamic factors, Dr. Foley opined that L.W.P.'s age, fifty-two at the time, greatly reduced his risk of recidivism. Dr. Foley based his opinion on studies that link decreased testosterone levels in older men to decreased sexual interests and behaviors. Therefore, Dr. Foley stated L.W.P.'s Static-99 assessment is an overestimate of his risk of recidivism. Dr. Foley concluded L.W.P. does not suffer from any mental disorders that might predispose him to commit acts of sexual violence or that L.W.P. has a high risk of committing another sexually violent act if he is not under direct supervision and treatment.

Judge Freedman credited the opinions rendered by Doctors Voskanian and Paolillo and did not credit the opinion rendered by Dr. Foley. The judge found there was overwhelming evidence to permit him to find that L.W.P. has a personality disorder with anti-social traits, and also suffers from paraphilia NOS as diagnosed by Dr. Voskanian. He also accepted that L.W.P.'s behavior over a protracted period of time has elements of sexual sadism. As to the risk that L.W.P. will engaged in further sexually violent behavior, Judge Freeman found:

His record shows he's predisposed to engage in sever[e] violence, the use of weapons, and sexual violence. And that if he were released[d], he would have serious difficulty controlling both his non-sexual violence and his sexual violence. And that he would with a very short period of time, be back in the -- back in the jackpot. And I think that he would be highly likely to be engaging in this kind of sexually violent behavior, amongst other crimes, if he were released. And I don't believe, at this point, any set of conditions that could be imposed, given his total lack of any kind of treatment in the past and his total lack of any interest or any motivation to change that any kind of conditional discharge could be made.

Given the nature of what he does, "tends to do," which is extremely dangerous and threatens death; and given his high propensity to do it, I do not hesitate at all in finding [L.W.P.] to be a sexually violent predator, highly likely for the reasonably foreseeable future to engage[] in acts of sexual violence with police. I will, therefore, commit him for the reasons I've just indicated and set a review date.

On appeal, defendant raises the following arguments:

POINT I

L.W.P.'S COMMITMENT MUST BE REVERSED BECAUSE DR. VOSKANIAN BASED HIS OPINION, IN SUBSTANTIAL PART, ON UNPROVEN ALLEGATIONS CONTAINED IN POLICE REPORTS THAT WERE NEVER ADMITTED TO BY L.W.P.

POINT II

THE STATE FAILED TO PROVE THE ELEMENTS FOR COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT BY CLEAR AND CONVINCING EVIDENCE.

POINT IIA

THE STATE FAILED TO ESTABLISH THAT APPELLANT SUFFERS FROM A MENTAL ABNORMALITY OR PERSONALITY DISORDER THAT PREDISPOSES HIM TO COMMIT ACTS OF SEXUAL VIOLENCE. POINT IIB

THE STATE FAILED TO ESTABLISH THAT, IF RELEASED, APPELLANT IS HIGHLY LIKELY TO SEXUALLY REOFFEND.

Our review of these findings is extremely narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We may modify an order "only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

The findings are well-supported by the evidence of record, and there is sufficient evidence by which Judge Freedman could make these findings to satisfy the clear and convincing standard of proof.

We also reject the contention that the commitment order is founded on unproven allegations and inadmissible hearsay. Evaluation psychologists and psychiatrists may rely on police reports, presentence investigation reports, as well as past psychological and psychiatric evaluations pursuant to N.J.R.E. 702 and 703 in their risk assessment analyses. An expert is permitted to rely on hearsay information in forming an opinion concerning a defendant's mental state. State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.) (citing State v. Krol, 68 N.J. 236, 261 (1975); State v. Maik, 60 N.J. 203, 208 (1972); State v. Whitlow, 45 N.J. 3, 19 (1965); State v. Lucas, 30 N.J. 37, 79 (1959)), certif. denied, 170 N.J. 85 (2001); see also In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004); J.H.M., supra, 367 N.J. Super. at 612.

While the rule should not serve as a vehicle for the wholesale admissibility of otherwise inadmissible evidence, such testimony is admissible if it is of a type the experts in the relevant field of practice rely on in arriving at their conclusions. Further, the trial court is entitled to consider hearsay information in its evaluation of expert credibility. N.J.R.E. 703; State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004); E.S.T., supra, 371 N.J. Super. at 576.

Furthermore, a resident who refuses to be examined can hardly complain that the State's psychiatrist's and psychologist's opinions are not based on personal observations. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.), certif. denied, 188 N.J. 492 (2006).

We, therefore, affirm the June 8, 2009 order committing L.W.P. to the STU.

Affirmed.


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