IN THE MATTER OF THE CIVIL COMMITMENT OF A.C. (SVP-695-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 1, 2018
• Docket: A-1118-16T5
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1118-16T5

IN THE MATTER OF THE CIVIL COMMITMENT OF A.C. SVP 695-15. ______________________________

Submitted July 9, 2018 – Decided August 1, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 695-15.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen J. Slocum, Deputy Attorney General, on the brief).

PER CURIAM

A.C. appeals from a March 7, 2016 order of the Law Division,

continuing his commitment to the Special Treatment Unit (STU), the

secure facility designated for the custody, care and treatment of

sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the

reasons that follow, we affirm.

We need not recount in substantial detail A.C.'s prior

criminal history, which dates back to the early 1960s. In sum,

A.C. has an extensive criminal history consisting of sexual and

non-sexual offenses. In 1964, A.C. was charged in Indiana with

sexual assault and assault and battery. He was convicted of

assault and battery, but the record is unclear as to the

disposition of the sexual assault charge. Defendant was thereafter

twice convicted of attempted rape in Indiana in 1967 and 1970.

A.C.'s predicate conviction arose from a November 1979 arrest

for breaking into the home of a seventy-four-year old woman, who

he then sexually assaulted. Following a 1980 jury trial, A.C. was

convicted of first-degree aggravated sexual assault, first-degree

aggravated assault, first-degree robbery, and second-degree

burglary, for which he was sentenced to an aggregate forty-five-

year prison term.

A.C. escaped from prison in 1981 and was not recaptured until

1985. Following a jury trial in 1990, A.C. was convicted of the

escape, and a consecutive fifteen-year prison sentence was

imposed. While incarcerated in state prison, A.C. incurred twenty-

four disciplinary infractions, including refusal to obey,

destroying property, possession of gambling paraphernalia,

2 A-1118-16T5 disruptive conduct, refusing work assignments, threatening bodily

harm, and refusing to submit to a search. The most recent

institutional infraction occurred in July 2012.

On November 5, 2014, A.C. was committed to the STU under the

SVPA after serving his sentence. The present appeal arises from

a periodic review of A.C.'s commitment, which was conducted by

Judge James F. Mulvihill on February 18 and March 1, 2016. At the

hearing, the State relied on the expert testimony of psychiatrist

Roger Harris, M.D., and psychologist Tarmeen Sahni, Psy.D., a

member of the STU's Treatment Progress Review Committee (TPRC).

A.C. presented the expert testimony of psychiatrist Michael Kunz,

M.D., and psychologist Gianni Pirelli, Ph.D.

After interviewing A.C. and reviewing previous psychiatric

evaluations, STU treatment records, and related documents, Harris,

Kunz and Pirelli prepared reports, which were admitted into

evidence. Dr. Sahni participated in the TPRC's review of A.C.'s

progress and treatment and authored the TPRC report, which was

also admitted into evidence, as were various other treatment notes

and records.

A.C. was born in 1944, and was seventy-one years old at the

time of the hearing. Notwithstanding A.C.'s age, Dr. Harris

concluded he met the criteria of a sexually violent predator and

was "highly likely to sexually re-offend if placed in a less

3 A-1118-16T5 restrictive setting" because he has not mitigated his risk. Dr.

Harris further opined that if A.C. were to be released from the

STU with conditions, he was highly unlikely to comply with those

conditions.

Based on A.C.'s "long history of disregarding the rights of

others," his failure "to conform to social norms," his

"irritab[ility,]" "aggressive[ness,]" "profound reckless

disregard for the safety of others[,]" and "lack of remorse and

being indifferent to the way he has hurt others," Dr. Harris

diagnosed A.C. with severe antisocial personality disorder. Dr.

Harris elaborated that A.C. "maintains the . . . antisocial

attitudes and behaviors that I believe are the nexus for his sexual

offending [and are] alive and well today . . . . I don't think

[A.C.] is that different today at age [seventy-one] than he was

throughout the [1970s] when [he was] sexually offending."

Dr. Sahni testified A.C. had not received "any kind of sex

offender treatment" that would reduce "his risk to sexually offend

. . . ." The TPRC recommended promoting A.C. to Phase 2 of

treatment, which "is considered the beginning phase[] of

treatment[.]" Dr. Sahni noted A.C. "continues to deny and does

not take any responsibility for any of the offenses that he's been

charged with."

4 A-1118-16T5 Like Dr. Harris, Dr. Sahni diagnosed A.C. as suffering from

a severe antisocial personality disorder. Additionally, Dr. Sahni

made a provisional diagnosis of paraphilic disorder, explaining

that A.C. "most likely has the disorder, however, there's

insufficient evidence to fully diagnose [him] with such disorder."

A.C. scored a four on the Static-99R,1 placing him in the "moderate

high" risk to sexually reoffend. In accord with Dr. Harris, Dr.

Sahni opined it was: (1) "highly likely" that A.C. would sexually

re-offend in the foreseeable future unless he were confined in a

secure facility for treatment; and (2) "highly unlikely" that A.C.

would comply if he were to be released from the STU with

Dr. Kunz initially interviewed A.C. and prepared a report on

behalf of the State, but was ultimately subpoenaed to testify on

behalf of A.C. at the review hearing. Dr. Kunz similarly

determined that A.C. suffered from antisocial personality

disorder. In accordance with the State's experts, Dr. Kunz

1 "The Static-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003). [We have] explained that actuarial information, including the Static- 99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" In re Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).

5 A-1118-16T5 testified "that [A.C.] has fairly consistently denied having

committed any sexual offenses, so in that regard he has not

addressed the offenses."

A.C. also scored a four on the Static-99R administered by Dr.

Kunz, "which place[d] him in a moderate high risk for reoffense."

However, Dr. Kunz noted "the authors of Static-99R advise caution

when using [it] . . . in the age group of over [seventy] because

the predictive ability of this instrument is not as good as it is

in younger age groups." Rather, the advice of the Static-99R

authors "is that the offenders over the age of [seventy] should

be assumed to have low risk."

In contrast to Dr. Sahni, Dr. Kunz did not diagnose A.C. with

paraphilia. Dr. Kunz opined A.C.'s "risk for reoffense is low,"

but nonetheless "it would be prudent to impose whatever conditions

could further decrease [A.C.'s] risk for reoffense." On cross-

examination, Dr. Kunz conceded he was unable to state within a

reasonable degree of medical probability that, if A.C. were

conditionally discharged, he would be highly likely to comply with

the conditions of release.

A.C.'s expert psychologist, Dr. Pirelli, also concluded A.C.

suffers from antisocial personality disorder. Dr. Pirelli was

unable to find A.C. has a paraphilia "at this time," but noted it

6 A-1118-16T5 was "possible by history given [A.C.'s] offense history that he

would have likely met [that] criteria in the past."

According to Dr. Pirelli, A.C.'s age decreased his chances

of sexually offending, which he described as an "extremely rare

event" for individuals, such as A.C., over age seventy. Moreover,

Dr. Pirelli's evaluation revealed nothing about A.C. that would

lead him to depart from that statistical analysis. Similar to Dr.

Kunz, Dr. Pirelli was unable to find, within a reasonable degree

of medical certainty, that A.C. was highly likely to comply with

all conditions of release were that to occur.

In an oral opinion rendered on March 2, 2016, Judge Mulvihill

found Dr. Harris to be a "very credible witness." Likewise, Judge

Mulvihill found Dr. Kunz credible, but disagreed with Dr. Kunz's

assessment "that the aging process has mitigated [A.C.'s] risk."

Rather, the judge found A.C. "has antisocial personality disorder

that's alive and well, and that he's no different than the man he

was back when he last offended. And he denies all of his offenses.

He needs treatment to mitigate his risk." Similarly, while Dr.

Pirelli testified credibly, the judge disagreed with Dr. Pirelli's

testimony that A.C. was not highly likely to reoffend due to his

age.

After recounting the testimony of all four experts, and

detailing A.C.'s criminal and disciplinary history and treatment

7 A-1118-16T5 record at the STU, Judge Mulvihill concluded A.C.'s commitment

should continue. The judge found

by clear and convincing evidence [A.C.] has been convicted of sexual violent offenses, [and] . . . he continues to suffer mental abnormality or personality disorder that does not spontaneously remit, antisocial personality disorder. And also I find that there is the paraphilia, at least by history, and it should be at least a rule out or provisional, and clear and convincing evidence that presently he is highly likely to sexually reoffend if not confined to a secure facility for control, care, and treatment, that the antisocial personality disorder affects him emotionally, cognitively, volitionally, and predisposes him to sexual violence, he has serious difficulty controlling his sexual violent behavior, and I find that he's highly likely to sexually reoffend at the present time.

The judge entered a memorializing order continuing A.C.'s

commitment, and this appeal followed.

On appeal, A.C. argues Judge Mulvihill erred in continuing

his civil commitment, and finding he was highly likely to commit

acts of sexual violence in the future. A.C. further contends the

judge's reliance on the testimony of Dr. Harris and Dr. Sahni was

not supported by credible evidence, and that in light of A.C.'s

age, the State's experts failed to prove the required link between

A.C.'s past crimes and his present danger to sexually reoffend.

We reject these arguments and affirm.

8 A-1118-16T5 "The scope of appellate review of a commitment determination

is extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C.,

146 N.J. 31, 58 (1996)). "The judges who hear SVPA cases generally

are 'specialists' and 'their expertise in the subject' is entitled

to 'special deference.'" Ibid. (quoting In re Civil Commitment

of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).

"The SVPA authorizes the involuntary commitment of an

individual believed to be a 'sexually violent predator' as defined

by the Act." In re Commitment of W.Z., 173 N.J. 109, 127 (2002)

(quoting N.J.S.A. 30:4-27.28). "The definition of 'sexually

violent predator' requires proof of past sexually violent behavior

through its precondition of a 'sexually violent offense . . . .'"

Ibid. It also requires that the person "suffer[] 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." Ibid. (quoting N.J.S.A.

30:4-27.26).

"[T]he mental condition must affect an individual's ability

to control his or her sexually harmful conduct." Ibid. "Inherent

in some diagnoses will be sexual compulsivity (i.e., paraphilia).

But, the diagnosis of each sexually violent predator susceptible

to civil commitment need not include a diagnosis of 'sexual

compulsion.'" Id. at 129.

9 A-1118-16T5 The same standard that supports the initial involuntary

commitment of a sex offender under the Act applies to the annual

review hearing. See In re Civil Commitment of E.D., 353 N.J.

Super. 450, 452-53 (App. Div. 2002). In either case, "the State

must prove by clear and convincing evidence that the individual

has serious difficulty controlling his or her harmful sexual

behavior such that it is highly likely that the person will not

control his or her sexually violent behavior and will reoffend."

W.Z., 173 N.J. at 133-34.

As the fact finder, "[a] trial judge is 'not required to

accept all or any part of [an] expert opinion[].'" R.F., 217 N.J.

at 174 (second and third alterations in original) (quoting D.C.,

146 N.J. at 61). Furthermore, "an appellate court should not

modify a trial court's determination either to commit or release

an individual unless 'the record reveals a clear mistake.'" Id.

at 175 (quoting D.C., 146 N.J. at 58).

We are satisfied from our review of the record that Judge

Mulvihill's findings are supported by substantial credible

evidence. Based on credible expert testimony, the judge determined

that A.C.'s disorders, past behavior, and treatment progress

demonstrated that he was highly likely to engage in acts of sexual

violence unless confined. The judge was not required to accept

the testimony of A.C.'s witnesses that his risk of sexually

10 A-1118-16T5 reoffending was low, especially when both experts were unable to

state with any degree of probability that A.C. would comply with

conditions imposed by the court if he were released back into the

community. Given our limited scope of review, the judge's decision

to continue A.C.'s commitment, to which we owe the "utmost

deference" and may modify only where there is a clear abuse of

discretion, In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001),

was proper.

Affirmed.

11 A-1118-16T5