IN THE MATTER OF THE CIVIL COMMITMENT OF M.A. (SVP-758-16, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1755-20
IN THE MATTER OF THE
CIVIL COMMITMENT OF
M.A.
________________________
Argued January 13, 2022 – Decided February 22, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Docket No. SVP-758-16.
Susan Remis Silver, Assistant Deputy Public Defender,
argued the cause for appellant M.A. (Joseph E.
Krakora, Public Defender, attorney; Susan Remis
Silver, on the briefs).
Stephen Slocum, Deputy Attorney General, argued the
cause for respondent State of New Jersey (Andrew J.
Bruck, Acting Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel; Stephen
Slocum, on the brief).
PER CURIAM
M.A. appeals from a March 2, 2021 order of the Law Division
recommitting him to the Special Treatment Unit (STU) for the custody, care ,
and treatment of sexually violent predators. We affirm.
We discern the following facts from the record. Prior to the subject
incident, M.A. had a criminal history consisting of four sexual assaults. On June
16, 2009, M.A. sexually assaulted a twenty-four-year-old woman by following
her on the street, groping her buttocks, and attempting to lift her skirt. He has
provided conflicting accounts of this offense, at times admitting to it, and at
other times claiming that he was high on PCP and has no memory of it. For that
offense, M.A. pleaded guilty to criminal sexual contact.
On August 25, 2009, M.A. sexually assaulted a seventeen-year-old female
who was walking on her college campus. He approached her, groped her, and
attempted to carry her away before being interrupted by other students and
campus security. M.A. claims to have been under the influence of PCP for this
offense as well and, therefore, has no memory of the assault. The charges for
this offense were resolved as part of his guilty plea for the June 2009 offense.
On March 10, 2012, M.A. was arrested for the attempted rape of a twenty-
one-year-old masseuse. M.A. asked the masseuse how much a massage with a
"happy ending" would cost, and when she declined his proposition, he donned a
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black ski mask. The masseuse asked if she could use the bathroom before
complying, and when he let her go, she used the opportunity to call the police.
After a short time, he followed her into the bathroom, grabbed her by the arms,
and dragged her out in front of the massage rooms. M.A. had his pants partially
down with his penis exposed and was wearing a condom. The masseuse was
able to escape into one of the massage rooms, but M.A. forced his way into the
room, threw her to the ground, and forcefully removed her underwear and pants.
She told M.A. that she already called the police, causing him to flee. The police
apprehended M.A. shortly thereafter.
On December 10, 2013, while on bail for the 2012 offense, M.A. groped
the buttocks of a twenty-nine-year-old female at a PATH train station while
riding the escalator behind her. After groping her buttocks, M.A. followed her
up the street, where she ran away from him several times out of fear of further
harm. M.A. kept his hand in his pocket as if he had a weapon he intended to use
against her. M.A. claims to have no memory of this offense because he was
high on PCP. For this offense, M.A. pleaded guilty to criminal sexual contact.
As a result of these offenses, the State successfully sought M.A.'s
commitment to the STU under the Sexually Violent Predator Act (SVPA),
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N.J.S.A. 30:4-27.24 to -27.38, in December 2016. He was conditionally
discharged in September 2019.
On May 9, 2020, M.A. and his girlfriend went shopping for a big-screen
television. The TV they purchased would not fit in the trunk of their car. As a
result, the pair decided to call for a Lyft driver with an SUV large enough to
accommodate the TV and transport it back to M.A.'s home.
A female Lyft driver between thirty and forty-years-old arrived to drive
M.A. and the TV home. While the TV was being loaded into the driver's car, it
apparently came close to breaking or damaging one of the windows, causing the
driver and M.A.'s girlfriend to argue and exchange curse words. M.A.'s
girlfriend did not ride in the Lyft.
During the ensuing drive, M.A. sat in the back seat and played loud music
from his phone. When the driver asked him to turn it down, he told her to "suck
my dick." M.A. repeatedly told the driver to "suck my dick" during the ride. At
one point, M.A. told her that he had a gun and was going to use it to compel her
to bring the TV into his house and perform fellatio on him. The driver became
so concerned by his statements that she pulled over, abandoned her car, and ran
to find someone to help her call the police. This occurred approximately ten or
eleven houses from M.A.'s house.
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M.A. testified that he never threatened her with a gun and never claimed
to have one. He explained that he only told her to "suck my dick" in order to be
"disrespectful towards her" after the initial confrontation loading the TV and
when she asked him to turn his music down. He further testified that once the
driver exited the car, he "waited a while" for her to return, and when she did not,
he "[p]ulled [the] T.V. out" and "dragged [it] down the street." The driver never
saw the gun that M.A. claimed he possessed.
When the police arrived, the officers spoke with the driver and a witness
who heard her screaming to call the police. This witness also observed M.A.
remove the TV from the back seat and proceed down the block. The officers
later observed M.A. exit his building, and when they attempted to question him,
he ran back inside. M.A. later came outside again and the officers began
speaking with him. He then attempted to go back inside again and at that point
the officers detained him.
After M.A.'s arrest, the State moved to terminate his conditional discharge
and recommit him under the SVPA. At the two-day recommitment hearing, the
State presented the expert testimony of Dr. Dean DeCrisce, M.D., a licensed
psychiatrist, and Dr. Kelly Kovack, Psy.D., a psychologist. M.A. presented the
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expert testimony of psychologist Dr. Christopher Lorah, Ph.D. and the testimony
of his mother and girlfriend. M.A. also testified.
At the conclusion of the hearing, the judge found the State's experts to be
more credible and ordered M.A. to be recommitted based on the events of May
9, 2020. He modified the statutorily-mandated annual review to a six month
review to re-evaluate M.A.'s progress moving forward. The judge issued a
supplemental opinion on April 5 and 6, 2021 pursuant to Rule 2:5-1 after M.A.
filed his notice of appeal.
On appeal, M.A. presents the following arguments for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY RELIED ON
HEARSAY FOR ITS TRUTH WHEN IT FOUND M.A.
COMMITTED A SEX OFFENSE ON MAY 9, 2020.
A. The State Failed to Introduce Any Evidence
to Prove that M.A. Sexually Threatened the Lyft
Driver with a Gun.
B. The State Introduced No Evidence that the
Driver Ran From Her Car Screaming for the
Police.
C. The State Presented No Evidence that M.A.
Tried to Flee or Gave a False Name When Police
Came to Arrest Him or Take Him to the STU.
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POINT II
THE TRIAL COURT VIOLATED M.A.'S FIFTH
AMENDMENT RIGHT TO REMAIN SILENT WHEN
IT INFERRED GUILT FROM HIS DECISION NOT
TO TALK TO THE POLICE AND VIOLATED HIS
DUE PROCESS RIGHTS WHEN IT THEN USED
THIS INFERENCE OF GUILT TO FIND THAT HE
NEEDED RECOMMITMENT.
"[O]ur review of [a judgment of] commitment[] pursuant to the SVPA is
limited." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div.
2007). "We can only reverse a commitment for an abuse of discretion or lack
of evidence to support it." Ibid. "Moreover, the committing judges under the
SVPA are specialists in the area, and we must give their expertise in the subject
special deference." Id. at 226. "The appropriate inquiry is to canvass the . . .
expert testimony in the record and determine whether the lower courts' findings
were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
We uphold a trial judge's "determination either to commit or release an
individual unless 'the record reveals a clear mistake.'" In re Civil Commitment
of R.F., 217 N.J. 152, 175 (2014) (quoting D.C., 146 N.J. at 58). "So long as
the trial court's findings are supported by 'sufficient credible evidence present
in the record,' those findings should not be disturbed." Ibid. (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)).
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Three requirements must be satisfied to prove the need for a person's civil
commitment. The person must 1) have been "convicted, adjudicated delinquent
or found not guilty by reason of insanity for [the] commission of a sexually
violent offense, or . . . charged with a sexually violent offense but found to be
incompetent to stand trial," 2) suffer "from a mental abnormality or personality
disorder" predisposing him to commit acts of sexual violence, and 3) as a result,
be "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. Prongs one and two are
not in dispute in this case. M.A. claims that because the State did not call the
Lyft driver or the witness to testify, the State's experts relied entirely on
inadmissible hearsay, and the evidence was therefore insufficient to establish
the likelihood he would reoffend. We disagree.
When determining the likelihood of a person to engage in acts of sexual
violence for the purposes of the SVPA, the court seeks to determine "the
propensity of a person to commit acts of sexual violence . . . of such a degree as
to pose a threat to the health and safety of others." N.J.S.A. 30:4-27.26. The
term "likely" is not defined in the statute, but the Supreme Court has explained
that an individual's likelihood to commit sexually violent acts relates to the
necessary lack of control determination. In re Commitment of W.Z., 173 N.J.
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109, 130 (2002). The Court has also recognized that predictions of future
dangerousness are permitted as a basis of civil commitment when that
dangerousness is coupled with "a finding of mental illness or abnormality." Id.
at 132. A court does not need to determine with statistical certainty if or when
a person will reoffend; it must find only that the person 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." Ibid.
Further, "experts generally agree that the best predictor of a registrant's future
criminal sexual behavior is that registrant's prior criminal record." In re
Registrant C.A., 146 N.J. 71, 90 (1996).
In seeking an order of commitment, the State is statutorily required to
present a psychiatrist's testimony, based on his or her personal examination of
the potential committee. N.J.S.A. 30:4-27.30(b); T.J.N., 390 N.J. Super. at 222-
24. While out-of-court statements used to prove the truth of the matter asserted
are generally inadmissible under N.J.R.E. 802, an evaluating expert who has
relied on an out-of-court statement in forming his or her opinion may testify to
it at trial, so long as the information is "of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject." N.J.R.E. 703; see In re Civil Commitment of E.S.T., 371 N.J. Super.
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562, 571 (App. Div. 2004). Therefore, in addition to his or her personal
examination, a psychiatrist may rely on other information in forming an opinion,
such as presentence reports, ADTC evaluations, and criminal histories. In re
Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004); In re
Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003).
Information about other acts of a committee, as well as information
regarding the "official version" of the offenses for which an offender has been
convicted, provides insight into behavior patterns over time and assists
evaluators in coming to a diagnostic conclusion and determining risk of future
dangerousness. A testifying witness may properly rely on this type of
information in order "to obtain a history of what happened through the years, to
see how the people involved in the offenses viewed the offenses, and to get a
sense of the way [the committee] responded to these situations over time ."
J.H.M., 367 N.J. Super at 613.
A court may also accept the reports made by police officers or medical
doctors as reliable insofar as they relate that the victim reported the history to
the police officer or medical doctor. C.A., 146 N.J. at 98. There is a
presumption "that police officers and medical doctors will accurately report on
the statements given to them." Ibid.
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In this case, the State's experts, Dr. DeCrisce and Dr. Kovack , testified as
to their opinion of M.A.'s risk of re-offense based on materials in the record
from his prior sexual offenses, his lengthy criminal history, police reports from
the May 2020 incident, presentence reports, and interviews conducted with M.A.
himself once he was brought back to the STU. These sources are the type that
are reasonably relied upon by experts in the field. Significantly, the conclusions
reached by the experts did not depend on the events of May 9, 2020 occurring
exactly as alleged. Both of the State's experts explained that their conclusions
regarding M.A.'s risk of reoffence would not change even accepting M.A.'s
version of the events. The judge made a credibility determination based on the
testimony of competing expert witnesses informed by material reasonably and
typically relied on by experts in the field. We discern no error requiring reversal.
We also reject M.A.'s argument that the judge violated his Fifth
Amendment right and statutory privilege against self-incrimination when he
inferred guilt from M.A.'s decision not to talk to police. It is clear from the
record and the expert testimony that M.A.'s attempts to evade arrest were cited
as an example of his inability to conform to supervision required by his
conditional discharge. The judge repeatedly credited the State's experts and
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found that their testimony and reports satisfied each prong of the SVPA by clear
and convincing evidence.
To the extent we have not addressed any of M.A.'s remaining arguments,
we conclude they are without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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