In re Commitment of RS

• Decision Date: 20 April 2001
• Citation: 773 A.2d 72,339 N.J. Super. 507
• Parties: In the Matter of the COMMITMENT OF R.S., Petitioner-Appellant.
• Court: New Jersey Superior Court

773 A.2d 72

339 N.J. Super. 507

In the Matter of the COMMITMENT OF R.S., Petitioner-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 14, 2001.

Decided April 20, 2001.

William F. Culleton, Jr., Deputy Public Defender, for appellant R.S. (Peter A. Garcia, Acting Public Defender, attorney; Mr. Culleton, on the brief).

Allison Accurso, Assistant Attorney General, for respondent State of New Jersey (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Mary Beth Wood and Douglass Derry, Deputy Attorneys General, on the brief).

Before Judges KING, COBURN and AXELRAD. The opinion of the court was delivered by KING, P.J.A.D

This is an appeal from a decision to admit testimony into evidence about actuarial risk assessment in a civil commitment hearing under the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38; L. 1998, c. 71, effective date August 12, 1999; see In re Commitment of M.G., 331 N.J.Super. 365, 371-74, 751 A.2d 1101 (App.Div.2000), for a review of the Act. See also John Kip Cornwell, John V. Jacobi and Philip H. Witt, The New Jersey Sexually Violent Predator Act: Analysis and Recommendations for the Treatment of Sexual Offenders in New Jersey, 24 Seton Hall L.Rev. 1 (1999).

Appellant R.S. was committed to the State's Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny after a nonjury hearing at which the judge heard testimony from a psychiatrist and a psychologist appearing for the State. Both recommended that R.S. be committed for treatment, care and confinement as a sexually violent predator. The State's psychologist based her recommendation, in part, on the results of actuarial assessments bearing on R.S.'s risk of recidivism.

Because R.S. objected to the use of actuarial instruments, the judge held an evidentiary hearing before reaching a decision on commitment. After receiving testimony from experts for both sides, he held that actuarial instruments were properly admissible because they helped the court and satisfied the requirements of reliability. The judge ruled that R.S. posed a threat to the community because he had a mental abnormality which predisposed him to commit acts of sexual violence. On this appeal, R.S. raises only the issue of the admissibility of the actuarial assessment instruments. We uphold their admissibility. Our de novo review of the record establishes that the State has met its burden to demonstrate the tests are reliable for use in this context as an aid in predicting recidivism.

I

On September 15, 1999 the Attorney General filed a petition for the civil commitment of R.S., under the recently effective SVPA. The petition was accompanied by two clinical certificates for involuntary commitment prepared by Vivian Schnaidman, M.D., and Lawrence A. Siegel, M.D., identifying R.S. as a sexually violent predator. On September 15, 1999 R.S. was temporarily committed to the NRU until a final hearing could be conducted on the issue of his continuing need for involuntary commitment as a sexually violent predator.

The commitment hearing was scheduled before Judge Philip M. Freedman on March 28, 2000. There is no right to a jury trial under the SVPA. At that time, counsel for R.S. moved to exclude any testimony concerning actuarial risk assessment instruments utilized by the State's experts. Later, in June, a five-day evidentiary hearing was held on the issue of the admissibility of actuarial instruments in the three cases now before us, R.S., W.Z. and J.P. On July 5, 2000 Judge Freedman decided that the actuarial instruments were admissible in their own right and as the basis of an expert opinion. He ruled that R.S. qualified as a "sexually violent predator" because he had been convicted of a predicate sexually-violent offense, suffered from a mental abnormality which affects his volition making him likely to engage in acts of sexual violence, and should be confined for treatment. N.J.S.A. 30:4-27.26.¹ Judge Freedman entered a judgment on July 6, 2000 committing R.S. to the NRU and scheduling an annual review hearing for June 14, 2001.

II

We first review R.S.'s prior criminal history. R.S., born December 14, 1967, has a significant history of sexual assault on prepubescent boys, under the age of thirteen. In 1989, R.S. sexually assaulted D.G., his male cousin, age nine, by digitally penetrating his anus and exposing his penis to the victim. R.S. was arrested on February 1, 1989 in Passaic County for that offense and charged with aggravated criminal sexual contact. In a sworn statement at the time of his arrest, R.S. stated he was under the influence of alcohol when he sexually assaulted D.G. and when he was drinking he became "turned on" by the sight of young boys. On April 28, 1989 R.S. admitted his guilt to the sexually violent offense against victim D.G.

On June 15, 1989 R.S. was evaluated at the Adult Diagnostic and Treatment Center (ADTC). At that time, R.S. admitted his first incident of sexually aberrant behavior occurred in 1987 when he exposed his genitals to his cousins in the basement of his home. He also acknowledged his behavior was wrong; he said when he was under the influence of alcohol, he behaved in a sexually inappropriate manner. He was diagnosed as a repetitive and compulsive sex offender eligible for sentencing to ADTC pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. On August 2, 1989 R.S. was sentenced to a five-year probationary term for the sexual assault of D.G. As a condition of his probation, mandatory substance abuse treatment and mental health treatment were ordered.

R.S. was again convicted of a sexually violent offense on July 22, 1993. He sexually assaulted four boys, between the ages of nine and twelve, on repeated occasions between September 1990 and November 1991. He committed these sexual assaults while on probation for the earlier sexual assault of D.G., age nine. R.S. lured the four young boys into his home to play Nintendo games. R.S. then played wrestling-type games with the boys during which he fondled their genitals and buttocks. He also exposed his penis to the boys and masturbated in front of them.

R.S. was arrested on November 12, 1991 and charged with ten counts of seconddegree sexual assault and four counts of third-degree endangering the welfare of a child. On September 21, 1992, pursuant to a plea agreement, he pleaded guilty to four counts of second-degree sexual assault. According to the May 17, 1993 pre-sentence evaluation, he admitted to a long history of sexual attraction to young boys and his own victimization at age twelve. In describing his sexual assaults of the four boys, R.S. admitted he realized that what he was doing was wrong but was unable to stop himself; he stated, "I would say to myself, `It's wrong.' But it didn't seem to work."

On July 22, 1993 R.S. was sentenced to a seven-year prison term with a five-year mandatory minimum. After evaluation, R.S. was ordered to serve his sex offender's sentence at ADTC. On October 15, 1993 R.S. pleaded guilty to a violation of the terms of his probation on the first sexually violent offense and was sentenced to a four-year term of incarceration, concurrent to the sentence on the later convictions.

During his incarceration at ADTC, R.S. was subject to six disciplinary charges including refusing to obey an order, threatening a staff member with bodily harm, assault, conduct which disrupts, and misusing electronic equipment. As a result of these disciplinary sanctions, on September 23, 1997, he was transferred from ADTC to East Jersey State Prison for a period of administrative segregation. On March 31, 1998 he returned to ADTC, served out his maximum sentence, and was released in September 1999.

III

At the SVPA commitment hearing, the State presented testimony from two experts, Dr. Stanley Kern, a psychiatrist employed by the NRU, and Dr. Jennifer Kelly, a staff psychologist at the NRU. R.S. did not present any witnesses at this final commitment hearing; however, he did present three expert witnesses at the evidentiary hearing on use of the actuarial evidence.

Kern's diagnosis was pedophilia, alcohol abuse and borderline mental retardation. R.S. was currently taking Prozac, to control compulsive behavior; Lupron, to reduce sexual desire; and Thorazine, to relieve anxiety. While Kern acknowledged that R.S. had undergone eight years of therapy, he had only recently become more involved in treatment at the NRU. R.S. still had an "impulsive control" problem and "certainly" needed treatment and confinement.

Kelly testified that she prepared an evaluation of R.S. based upon a review of his treatment history, criminal record, and standardized testing, as well as her personal observations of R.S. in group sessions and a clinical interview. Kelly also administered the Minnesota Multi-Phasic Personality Inventory (MMPI-II) and scored four actuarial risk assessment tools—the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), the California Actuarial Risk Assessment Tables (CARAT), the Registrant Risk Assessment Scale (RRAS), and the Rapid Risk Assessment of Sex Offender Recidivism (RRASOR). Kelly said that the results of the MMPI II were consistent with an individual who is impulsive, easily frustrated, angry, hostile and in some ways antisocial. On the actuarial instruments, R.S. fell into the high-risk range on the MnSOST-R, the CARAT, and the RRAS, and into the moderate-risk range on the RRASOR. Kelly stated that R.S. has acknowledged that he currently has deviant sexual fantasies involving children, but he claimed that he has tried to change his fantasies of children to fantasies of adult males. However, Kelly could not be sure of the truth of his statement because R.S. was not completely forthright on the psychometric testing. She concluded in her forensic psychosexual evaluation of March 27, 2000 that...