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In re Civil Commitment of M.S. SVP-586-10

Superior Court of New Jersey, Appellate Division

August 2, 2013



Submitted March 19, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-586-10.

Joseph E. Krakora, Public Defender, attorney for appellant M.S. (Randall J. Peach, Designated Counsel, on the brief)

Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).

Before Judges Alvarez, St. John and Leone.


M.S. appeals from the December 22, 2010 order civilly committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.


The record discloses the following facts and procedural history leading to the determination under review.

M.S. was born in October 1959 and is currently fifty-three years old. In 1989, M.S. pled guilty to first degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; and third-degree possession of a knife for unlawful reasons, N.J.S.A. 2C:39-4(d).

His conviction arose from his actions on September 4, 1987, when he hid in the backseat of a vehicle used by two nineteen year-old females, E.H. and A.L., while they were out of the vehicle getting coffee. After retuning, A.L started the car and began to drive, M.S. grabbed E.H. by the hair, put a gun to her head, and threatened to kill her if A.L. did not obey his commands. M.S. told A.L. to continue driving as he dragged E.H. into the backseat and exchanged his gun for a knife. M.S. then pulled down E.H.'s pantyhose and digitally penetrated her vagina.

M.S. then directed A.L. to drive to a secluded location where he dragged E.H. out of the car and attempted to vaginally rape her. M.S was unable to maintain an erection. Becoming enraged, M.S. then slit E.H.'s throat and stabbed her repeatedly in the back, abdomen, side, and hand. While this was occurring, A.L. ran to a nearby house and called the police. This incident occurred four months after M.S. had been released on parole for a 1978 conviction for two counts of armed robbery, three counts of larceny, and one count of resisting arrest.

After pleading guilty, M.S. was sentenced to a thirty-year term of incarceration with fifteen-years parole ineligibility for the kidnapping, a consecutive ten-year period of incarceration with five-years parole ineligibility for the attempted murder, and a concurrent five-year term of incarceration for unlawful possession of a knife. While serving his sentence M.S. incurred fifty institutional infractions, including a conviction for aggravated assault on a corrections officer for which he received a concurrent ten-year sentence.

M.S. was scheduled to be released on September 24, 2010. Before his release, the State filed a petition for the Civil Commitment of M.S. pursuant to the SVPA. On September 23, 2010, M.S. was temporarily committed to the STU.

On December 3, 2010, a commitment hearing was conducted at which a psychiatrist, Pogos Voskanian, M.D., and a psychologist, Rosemarie Vala Stewart, Ph.D., testified on behalf of the State, and a psychologist, Dr. Christopher Lorah, testified on behalf of M.S. All three doctors used a 1972 psychological report on M.S. prepared at the request of school authorities when he was in middle school, as part of the basis for their evaluations and reports.

This middle school report was entered into evidence. It was written by Doris L. Roland who was purportedly a school psychologist. The report stated that M.S. had been involved in an incident at school where he demanded another student perform an act of fellatio. The report went on to state that M.S.'s teachers described him "as sneaky and untrustworthy" and that when in unstructured situations he "accosted other children and intimidated them in various ways." The report further stated that one "teacher described him as being unable to keep his hands off the girls. This teacher had received complaints from the girls who said 'he's always been that way.'" Dr. Voskanian testified that this middle school report was the type of document a psychiatrist would ordinarily utilize in preparing his or her own report.

At the hearing, Dr. Voskanian testified that he considered M.S.'s 1987 offense to be a sex crime because it involved significant sexual components. Dr. Voskanian diagnosed M.S. with Polysubstance Dependence and Antisocial Personality Disorder, which he believed affected M.S. emotionally, cognitively and volitionally so as to predispose him to commit acts of sexual violence. Dr. Voskanian testified that M.S. has difficulty controlling his sexually offending behavior and has a high risk of perpetrating another sexual offense in the future unless he were to remain in a secure facility.

Dr. Stewart also testified that she considered M.S.'s 1987 offense to be a sexual offense based upon the record and statements he made to her during an interview. Dr. Stewart also diagnosed M.S. with Polysubstance Dependence and Antisocial Personality Disorder, and further indicated that he has significant traits for psychopathy. Dr. Stewart likewise opined that if not confined, M.S.'s risk of sexually reoffending was high. Dr. Stewart noted M.S.'s fifty institutional infractions, as well as an early childhood pattern of boundary issues based on the middle school report.

M.S.'s expert witness, Dr. Lorah, likewise diagnosed M.S. with Polysubstance Dependence and Antisocial Personality Disorder. However, Dr. Lorah believed that over the previous ten years M.S. had exhibited a reduction in antisocial personality disorder symptoms and thus there was no reason to believe that he would be predisposed to commit an act of sexual violence.

On December 22, 2010, the court determined that M.S. was a sexually violent predator in need of involuntary commitment and ordered M.S. committed to the STU. This appeal ensued.

In essence, M.S. raises two points for our consideration: (1) that the middle school report should not have been admitted; and (2) that the State failed to prove that he requires commitment pursuant to SVPA. Two additional points, that the opinions of the State's experts were net opinions and his commitment is punitive and "amounts to the application of an ex post facto law against him"[1] were not raised before the trial judge. We decline to consider questions or issues not properly presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Therefore we will not consider the issues M.S. failed to raise before the trial judge.


We note initially that our scope of review of SVPA commitment orders is "extremely narrow"; we affirm such orders unless the record reveals a "clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App. Div.) (internal quotation mark omitted), certif. denied, 177 N.J. 490 (2003). Where, as here, the challenge is premised upon a claim of erroneous evidentiary rulings, we are particularly deferential in assessing whether the judge abused his discretion. State v. Brown, 170 N.J. 138, 147 (2001); see also In re Commitment of R.S., 339 N.J.Super. 507, 531 (App. Div. 2001) ("[G]enerally, appellate courts apply an abuse of discretion standard to the evidentiary rulings of a trial court."), aff'd, 173 N.J. 134 (2002). With those standards in mind, we turn to appellant's contentions.

As a general matter, a trial judge in a SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on the hearsay and the hearsay is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of A.X.D., 370 N.J.Super. 198, 201-02 (App. Div. 2004). An expert is permitted to rely upon hearsay information in forming an opinion with respect to an individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Civil Commitment of G.G.N., 372 N.J.Super. 42, 56 (App. Div. 2004); A.X.D., supra, 370 N.J.Super. at 202. We are satisfied from our review of the record that the judge adhered to these principles in rendering his decision in this case.

In this case, the trial judge allowed the "judicious use of hearsay, " In re Civil Commitment of A.E.F., 377 N.J.Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005), while not allowing hearsay to dominate the proceedings. As the trial judge stated,

I want to clearly indicate for the record that unless I particularly indicate I am relying on something because it comes in under an exception to the hearsay rule, I am referring to documents, reports, evaluations and the like in the record to point out things in which, in my view, support the opinion of the expert or experts I find credible, and to explain in part why I find the expert or experts' opinion credible. I'm not relying on the hearsay as fact to support my opinion.

It is this balance which should be achieved in SVPA review hearings. The trial judge discussed the middle school report as "show[ing] a history and background which supports the conclusions that the state's experts came to, that he is predisposed by his antisocial personality disorders."

M.S. argues that the middle school report was not admissible under any exception to the hearsay rule. However, it is clear that the report was admitted only because it was used by the State and M.S.'s experts to form opinions with respect to M.S.'s mental condition. Similarly, the Supreme Court has determined that presentence and police reports relied upon by testifying experts in SVPA commitment hearings 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 Civil Commitment of J.M.B., 197 N.J. 563, 597-98 n.9, cert. denied, 558 U.S. 999, 130 S.Ct. 509, 175 L.Ed.2d 361 (2009); see also State v. Eatman, 340 N.J.Super. 295, 301-02 (App. Div.) (concluding that a 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); In re Civil Commitment of T.J.N., 390 N.J.Super. 218, 224-25 (App. Div. 2007) (permitting use of actuarial instruments and background); In re Civil Commitment of J.S.W., 371 N.J.Super. 217, 225 (App. Div. 2004) (permitting use of hearsay in pre-sentence reports), certif. denied, 183 N.J. 586 (2005); A.X.D., supra, 370 N.J.Super. at 201-02 (permitting use of STU reports).

Here, the trial judge specifically stated that he was admitting the hearsay evidence for a limited purpose. The materials referenced are normally considered in a psychological evaluation, and both the State and M.S.'s experts' testimony to that effect was undisputed.

Ultimately, the pertinent query is whether "the opinion ultimately rendered . . . is that of the witness based on his or her . . . own evaluation of the committee, prior offenses, and objective test data." A.E.F., supra, 377 N.J.Super. at 492. In this case, neither Dr. Stewart nor Dr. Voskanian "simply agree[d] with the opinions of other, nontestifying examiners." Id. at 489. Rather, each formed his or her opinion based on an assessment of appellant's prior history and psychological/psychiatric deficiencies. In sum, we find no merit to this argument.

Finally, M.S. argues that the State failed to meet its burden that M.S. requires commitment as a sexually violent predator pursuant to the SVPA. We disagree. The trial judge was "satisfied by clear and convincing evidence that [M.S.] meets the criteria for civil commitment." The judge found that if M.S. was released, "he would have serious difficulty controlling his sexually violent behavior to such a degree he would be highly likely to engage in non-sexual and sexual conduct within the reasonably foreseeable future." The judge credited the opinions of the State's experts and did not "credit the opinion of Dr. Lorah to the effect that anti-social personality disorder doesn't predispose for sexual offending."

We must defer to the committing judge's decision unless "the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J.Super. 443, 459 (App. Div. 2001). There is no such abuse of discretion here. We are satisfied that the evidence clearly and convincingly established that M.S. is a sexually violent predator and currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in acts of sexual violence if not confined. Affirmed.

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