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In the Matter of the Civil Commitment of G.B. Svp-498-08.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF G.B. SVP-498-08.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-498-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 12, 2012

Before Judges Simonelli, Koblitz and Accurso.

G.B. appeals from the February 19, 2009 order granting the Attorney General's petition for involuntary civil commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38, and the May 21, 2009 order denying reconsideration. G.B. served a seven-year sentence at the New Jersey State Diagnostic and Treatment Center (ADTC) as a result of his guilty plea to two counts of first-degree aggravated sexual assault against his daughter, N.J.S.A. 2C:14-2(a)(1). After reviewing the contentions advanced on appeal in light of the facts and relevant law, we affirm.

In June 1995, six months after her daughter was born, G.B.'s wife brought her to the hospital where an examination revealed a total of eleven fractures: a recently fractured left leg, older fractures of the right leg, and partially healed fractures to both arms. The infant also had bite marks on both of her feet and her left hand, as well as a thumbprint bruise on her thigh.

Although G.B. initially claimed that his daughter's injuries resulted from "rough play" and were not inflicted intentionally, he ultimately pleaded guilty to fourth-degree child abuse, N.J.S.A. 9:6-3, and was sentenced to probation for three years. He was ordered to attend parenting classes and counseling, to cooperate with the Division of Youth and Family Services,*fn1 to maintain employment, and to provide child support.

He was further prohibited from contacting his daughter. In 1997, the family reunified.

Shortly after reunification, and while still on probation for physically abusing her, G.B. began sexually abusing his then two-year-old daughter. The child later told police that her father touched her vagina with his hand, performed cunnilingus on her and made her perform fellatio on him until he ejaculated in her mouth. The sexual abuse persisted until 2001, when the then six-year-old disclosed the abuse to her mother. Rather than report the abuse to law enforcement, G.B.'s wife asked him to stop. A few months later, G.B. signed himself into a hospital claiming suicidal ideation and admitted to touching his daughter in a sexually inappropriate manner.

G.B. was arrested and charged with ten counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

Documentation from the ADTC reveals that, during therapy sessions at the facility, G.B. admitted that he "intentionally broke the limbs of his baby" and recounted how he remembered "her screaming [on one occasion] before [the limb] actually snapped." He also revealed that he would intentionally compress his daughter's chest until she turned blue, and that he bit her fingertips and heels.

While at the ADTC, G.B. also admitted that he began molesting his two younger half-sisters when he was between eleven and thirteen-years-old and they were two and four years of age. During his testimony at his civil commitment hearing, G.B. admitted to rubbing his penis on their vaginas and performing cunnilingus on both. His testimony also revealed incestuous acts with his full sister.

On April 16, 2007, G.B.'s case manager at ADTC, Cari-Ann Feiner-Escoto, Psy.D., issued a termination report, in which she opined that G.B. presented "a much higher risk for sexual reoffense than suggested by the actuarials." She noted that "his sexual offending and sadistic assaults overlap[ped] in time and were perpetrated on the same victim" and remarked on his "seemingly uncontrolled momentary smile" when he discussed his "sadistic arousal" when harming his young daughter. Dr. FeinerEscoto ultimately recommended that G.B. be screened for involuntary civil commitment under the SVPA, "[g]iven his sadistic arousal, obsessive preoccupation with his victim and family, and likely danger he poses to his daughter."

Lawrence Siegel, M.D. and Nancy Graffin, Ph.D. jointly conducted a screening on June 27, 2007, and related their findings in a Psychiatric Termination Report dated June 28, 2007. In their conclusion, the examiners acknowledged the risk that G.B. posed to his daughter and recognized that he would likely continue to have issues with children generally. Nevertheless, they determined that he was not highly likely to sexually reoffend and, thus, did not meet the threshold for involuntary commitment.

G.B. was released from custody on October 13, 2007. At the time of his release, he was not referred to the Attorney General for possible commitment under the SVPA.

When the Burlington County Prosecutor's Office contacted Dr. Feiner-Escoto in regard to Megan's Law tiering*fn2 for G.B., she disclosed G.B.'s troubling childhood behaviors, details of his physical and sexual abuse of his daughter, and his persistent attempts while at the ADTC to contact his family despite an institution rule prohibiting contact with his victim. Dr. Feiner-Escoto also expressed concern over G.B.'s "skill at presenting as believably remorseful and sincere while continuing to make attempts to contact [his daughter]" and his "disingenuous presentation." The State hired Vivian Schnaidman, M.D., to conduct a preliminary assessment of G.B. After reviewing the case records, Dr. Schnaidman determined that G.B. displayed psychopathic tendencies and should be referred for civil commitment.

On the State's motion, G.B. was taken into custody in July 2008 to submit to a psychiatric evaluation to determine if he met the criteria for commitment as a sexually violent predator.

During the commitment hearing, the State presented the testimony of Dr. Schnaidman, Dean DeCrisce, M.D., and psychologist Brian Friedman, Psy.D. The State also presented testimony from two of G.B.'s treating ADTC employees, Dr. Feiner-Escoto and Kathleen Yemm, a licensed clinical social worker.

G.B. presented the testimony of psychologist Timothy Foley, Ph.D., psychiatrist Daniel Greenfield, M.D., and also testified on his own behalf.*fn3

G.B. raises the following issues on appeal:

Point I: THIS COURT SHOULD DISMISS THE CASE AGAINST MR. B. BECAUSE THE STATE FAILED TO MEET ITS BURDEN IN A TIMELY FASHION.

A. THE COURT ERRED IN DENYING MR. B. A PLENARY HEARING WITH BOTH CERTIFYING EXPERTS WITHIN [TWENTY] DAYS, IN DIRECT VIOLATION OF THE SVPA.

B. THE COURT SHOULD HAVE DISMISSED THE PETITION AGAINST MR. B. ON AUGUST 6, 2008 OR OCTOBER 16, 2008 FOR LACK OF EVIDENCE.

Point II: IT WAS A MANIFESTLY INCOMPLETE, UNFAIR, AND UNCONSTITUTIONAL PROCESS, WHEN THE COURT FAILED TO OPEN OR REMEDY THE STATE['S] DATA, EVIDENCE, AND WITNESS BARRICADES.

A. MR. B. WAS BARRICADED FROM TELLING HIS SIDE OF THE STORY.

B. RECIPROCAL OR ADVERSE INFERENCES SHOULD HAVE BEEN MADE BY THE COURT TO REMEDY THE MISSING WITNESSES.

Point III: THE STATE FAILED TO PROVE ITS CASE BY CLEAR AND CONVINCING EVIDENCE PURSUANT TO N.J.S.A. §§ 30:4-27.24 to 30:4-27.38.

A. THE STATE NEVER DIRECTLY RESPONDED TO MR. B.'S OFFER OF PROOFS REGARDING THE EFFICACY OF ELECTRONIC MONITORING AS A RISK MITIGATOR, AND THE COURT IMPROPERLY CONSIDERED IF ELECTRONIC MONITORING AND OTHER EXTERNALITIES WOULD REDUCE MR. B'S RISK TO LESS THAN HIGHLY LIKELY TO RECIDIVATE SEXUALLY.

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 (citing N.J.S.A. 30:4-27.25), cert. denied, J.M.B. v. New Jersey, ___ U.S. ___, 130 S. Ct. 509, 175 L.Ed. 2d 361 (2009). Thus, the SVPA provides for the involuntary commitment of any person deemed by the court to be a sexually violent predator within the meaning of the statute. N.J.S.A. 30:4-27.32(a). A sexually violent predator is defined as:

[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and 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.]

"The phrase 'likely to engage in acts of sexual violence' is defined further to mean that 'the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others.'" In re Commitment of W.Z., 173 N.J. 109, 120 (2002) (quoting N.J.S.A. 30:4-27.26). The State must prove by clear and convincing evidence that the individual poses a threat to the health and safety of others because of a "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 the "reasonably foreseeable future." Id. at 132; see also In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 631 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Furthermore, "the individual's danger to self and others [must be] because of his or her present serious difficulty with control over dangerous sexual behavior." W.Z., supra, 173 N.J. at 132-33.

"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 (alteration in original) (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

In reviewing a commitment under the SVPA, appellate review is "exceedingly narrow." W.X.C., supra, 407 N.J. Super. at 630; see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). We have "recognized that 'committing judges under the SVPA are specialists in the area,'" whose "'expertise in the subject [is entitled to] special deference.'" In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35-36 (App. Div.) (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)), cert. denied, 192 N.J. 296 (2007). Furthermore, "[a]n appellate court should give the 'utmost deference' to the commitment judge's determination of the appropriate balancing of societal interests and individual liberty." Id. at 36 (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). Thus, the Law Division's determination will be subject to modification on appeal "only where the record reveals a clear abuse of discretion." W.X.C., supra, 407 N.J. Super. at 630 (citing J.M.B., supra, 395 N.J. Super. at 90). Accordingly, a reviewing court must "canvass the record, inclusive of the expert testimony, to determine whether the findings made by the trial judge were clearly erroneous." W.X.C., supra, 407 N.J. Super. at 630 (citing In re D.C., 146 N.J. 31, 58-59 (1996)).

We reject G.B.'s arguments and affirm the grant of the State's application substantially for the reasons stated in Judge Philip Freedman's comprehensive oral opinions of February 18, 2009 and May 5, 2009. We add only the following comments regarding G.B.'s contentions in Point I and II of his brief.

I

G.B. contends that he is entitled to reversal of the order of involuntary commitment because the court impermissibly postponed the twenty-day hearing mandated by N.J.S.A. 30:4-27.29. He argues that the court erred in finding he waived his right to a timely proceeding. A review of the relevant facts is necessary to properly assess G.B.'s claim.

On July 14, 2008, the State filed a petition, supported by two medical certifications, to have G.B. civilly committed under the SVPA. On that date, the court determined that there was probable cause to find G.B. was a sexually violent predator in need of civil commitment and ordered him temporarily committed to the New Jersey Special Treatment Unit (STU) pending a final hearing, which the court scheduled for August 4, 2008. On July 18, 2008, G.B. signed a form "20-Day Waiver," knowingly and voluntarily relinquishing his right to a hearing within twenty days. G.B.'s counsel, who signed the waiver as a witness, certified that he intended to submit the waiver to the court only if the State's expert report, due before the hearing date, recommended commitment.

G.B.'s assigned attorney claims he was prohibited by his supervisor from appearing before the judge who had initially been assigned to conduct the commitment hearing. The Public Advocate's office did not immediately assign a replacement attorney, leaving G.B. without a specifically assigned attorney who could appear before this particular judge for a few days.*fn4

Without input from the defense, this judge granted the State's request for a two-day postponement of the twenty-day hearing. G.B.'s counsel certified that he received the State's expert report on August 5, the day after the originally scheduled hearing date. The next day, G.B.'s counsel submitted the waiver by facsimile to the court.

G.B.'s first contention stems directly from the two-day extension from August 4 to August 6. G.B. argues that granting the extension was an abuse of discretion, his waiver of the timeliness of the twenty-day hearing was "inactive," and the State failed to satisfy its statutory burden of production by the original August 4 hearing date. G.B. claims he is therefore entitled to a reversal of the order of commitment.

N.J.S.A. 30:4-27.28(g) states that once "there is probable cause to believe . . . [a] person is a sexually violent predator in need of involuntary commitment," the court shall authorize temporary commitment and set a date for the final hearing. N.J.S.A. 30:4-27.29(a) states that the hearing shall occur "within [twenty] days from the date of the temporary commitment order."

When denying defendant's motion to dismiss on October 16, 2008, Judge Freedman, who had by then taken over the case, first noted that the minimal two-day delay, when measured against the nature of SVPA cases and the purpose of the SVPA, cautioned against outright dismissal of the State's complaint. He further observed the absence of any law, statutory or otherwise, "that says the failure to proceed within the [twenty] days results in a dismissal." We agree with this reasoning.

G.B. quotes In re Commitment of M.M., 384 N.J. Super. 313, 329 (App. Div. 2006), to argue that "[b]ecause the patient's liberty is at stake, 'meticulous adherence to statutory and 'constitutional criteria" is required." M.M. addressed the procedure as it relates to civilly committed individuals generally, not for individuals previously incarcerated or institutionalized as sexually violent offenders. Id. at 321. Instead, even a lengthy delay in the proceedings will not deprive a defendant of his statutory right to a hearing in light of the need for a competency evaluation and defense counsel's adjournment requests "and, in any event, does not warrant vacatur of the commitment order." In re Civil Commitment of D.Y., 426 N.J. Super. 436, 447 (App. Div. 2012). In balancing G.B.'s personal liberty interests against the public's interest in protecting society from sexually violent offenders, a two-day delay to wait for completion of an expert's report is not an abuse of discretion.

G.B. further claims the waiver was not "active," as he intended to submit the waiver only if the State's expert submitted a timely report recommending civil commitment.

The court received G.B.'s waiver on August 6, 2008, the date scheduled for the hearing after the two-day extension. As Judge Freedman noted, "as far as the court knew," G.B.'s counsel submitted the waiver in good faith. If G.B. did not wish to utilize his waiver, he could have proceeded with the hearing on August 6.

In his final argument on this point, G.B. contends the State had insufficient evidence to satisfy its burden of production because the State's report submitted on August 5 did not demonstrate that G.B. met the criteria for commitment.

Both the State and the court were ready to proceed with the hearing on August 6. G.B.'s waiver effectively relieved the State of its obligation to meet its burden at that time.

II

In Point II of his brief, G.B. contends that he was deprived of the opportunity to effectively cross-examine adverse witnesses. He first asserts that the court erroneously denied his requests to depose Yemm and Dr. Feiner-Escoto, the authors of the ADTC treatment notes consulted by the State's expert witnesses.

Both the SVPA's statutory scheme and the Rules are silent as to whether a defendant in such proceedings has a right to depose witnesses. See N.J.S.A. 30:4-27.24 to -27.38; R. 4:74-7(d). Judge Freedman noted that depositions may be ordered in special circumstances, but determined they were unnecessary here because the court limited Dr. Feiner-Escoto's testimony to the opinions and information contained in her treatment notes. Moreover, Yemm was called only to authenticate her treatment notes. Not only did G.B. have these treatment notes prior to trial, but both Yemm and Dr. Feiner-Escoto were cross-examined by defense counsel. Thus, he suffered no prejudice as a result of the court's refusal to order depositions under these circumstances.

G.B. next cites In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), certif. denied, 192 N.J. 295 (2007), to assert that the commitment court is obligated, pursuant to N.J.R.E. 703, to examine the reasonableness of the experts' opinions, as well as the reliability of the underlying data. In E.S.T., supra, the State submitted two clinical certificates prepared by forensic experts in support of its petition for commitment. Id. at 566-67. Two other experts testified on the State's behalf at the temporary commitment hearing and concurred in the conclusions made in these certifications. Id. at 567-70. While the testifying experts each conducted brief interviews of the defendant, id. at 568, they both based their conclusions largely on the findings stated in their colleagues' clinical certificates. Id. at 568-70, 572. The E.S.T. court refused to permit "the opinions of the non-testifying experts [to be] bootstrapped into evidence through the testimony of the testifying experts without an opportunity for cross-examination of the underlying opinions." Id. at 575.

As an initial matter, in 2009, we clarified that "E.S.T. should not be read 'to preclude reliance, in part, on prior evaluations conducted for other purposes, such as ADTC and other psychiatric evaluations conducted in connection with sentencing or for parole consideration.'" W.X.C., supra, 407 N.J. Super. at 639-40 (quoting In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.), certif. denied, 185 N.J. 393 (2005)). We further stated that expert opinion testimony is admissible "[a]s long as the opinion ultimately rendered at the initial commitment hearing is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data[.]" Id. at 640 (citing A.E.F., supra, 377 N.J. Super. at 492).

The State's testifying experts relied on reports concerning G.B.'s mental health, criminal and police history, treatment history, and clinical evaluations in rendering their opinions. They testified that such sources of information are typically relied on by experts in performing risk assessments. Judge Freedman determined that these experts' opinions were admissible and credible.

Evidentiary decisions of a trial court are reviewed under an abuse of discretion standard. Ibid. An expert may rely on hearsay evidence for his or her opinion on a defendant's mental condition "as long as the hearsay information was of a 'type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Id. at 641 (quoting N.J.R.E. 703).

Judge Freedman acknowledged that when formulating his opinion, he relied on both the expert testimony and the hearsay evidence the experts used to reach their conclusions. He painstakingly reviewed and summarized the hearsay evidence, including pre-sentence reports, medical reports, police reports, psychiatric evaluations, treatment notes, and actuarial assessments, as well as potentially mitigating evidence submitted by G.B. He then reviewed the trial testimony and made credibility findings as to each witness. After reviewing Judge Freedman's extremely thorough oral opinion, it is clear that he properly considered the hearsay evidence "'as background in evaluating the opinions of the . . . experts, who testified that they considered these reports in reaching their own diagnoses.'" W.X.C., supra, 407 N.J. Super. at 641 (alteration in original) (quoting In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005)).

Furthermore, the treatment notes are admissible under the business records exception to the hearsay doctrine, N.J.R.E. 803(c)(6), as they were created in the ordinary course of business and were properly authenticated by Dr. Feiner-Escoto and Yemm. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004) (noting that "reports of the STU treatment teams [are] business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth insofar as they factually reported [the patient's] statements or refusals to discuss certain issues").

G.B.'s next contention is that Judge Freedman's credibility findings, particularly regarding G.B.'s credibility, were inherently biased due to the nature of the SVPA proceedings. He avers that a flawed discovery process "barricaded [him] from telling his side of the story," which served only to perpetuate that bias.

Absent an obvious and exceptional showing of error, appellate courts ordinarily should not undertake to alter a trial court's credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999); In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003) (holding that a trial court's determination regarding a commitment hearing should be "modified only where the record reveals a clear abuse of discretion").

Statements attributed to G.B. in both the treatment notes and his personal maintenance contract are admissible under N.J.R.E. 803(b)(1). G.B. asserts that the judge erred by not investigating whether these statements were actually made and, if so, whether they were voluntary. He argues that any inculpatory statements were the product of duress, "made under the rack of ADTC treatment," and thus the judge should have investigated their veracity.

G.B. provided lengthy testimony. He was afforded every opportunity to tell his side of the story on subjects ranging from his childhood, his pre-teen sexual abuse of his toddler half-sisters, his marriage, the physical and sexual abuse of his daughter, and the specifics of his treatment at ADTC, among other relevant topics. Judge Freedman, after reviewing the extensive record and fully considering the testimony, determined that G.B. lacked credibility. He further noted that G.B.'s assertions regarding his therapists' biases were unfounded, as he was given an opportunity to raise such issues when cross-examining them and did not do so. The record amply supports Judge Freedman's credibility findings.

G.B. further maintains that the State's failure to call certain witnesses warranted an inference that their testimony would have been unfavorable to the State. Moreover, he argues the judge abused his discretion by not holding a hearing pursuant to the "missing witness doctrine."

To draw an inference based on the nonproduction of a witness, "the witness must be 'within the power of the party to produce' and [ ] the proffered testimony must be 'superior to that already utilized in respect to the fact to be proved.'" Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 426 (App. Div. 1996) (citing State v. Clawans, 38 N.J. 162, 171 (1962)). As Judge Freedman noted, the State had "no obligation to call every witness possible[] . . . particularly when they [were] available" to G.B. Under these circumstances, Judge Freedman's refusal to apply adverse inferences against the State was not an abuse of discretion.

G.B. claims he requested production of certain witnesses to be interviewed by his attorney, which the State refused to accommodate. However, as Judge Freedman noted, defense counsel did not make a formal demand for these witnesses. R. 4:14. We are satisfied that G.B. received a full and fair hearing, with all appropriate pre-trial discovery.

Affirmed.


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