IN THE MATTER OF THE CIVIL COMMITMENT OF A.R. (SVP-746-16, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 10, 2018
• Docket: A-0895-17T5
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0895-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF A.R., SVP-746-16. ________________________________

Argued March 22, 2018 – Decided July 10, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 746-16.

Patrick F. Madden, Assistant Deputy Public Defender, argued the cause for appellant A.R. (Joseph E. Krakora, Public Defender, attorney).

Nicholas Logothetis, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney).

PER CURIAM

A.R. appeals from the October 6, 2017 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.

A.R., who is now forty-four years old, committed his first

non-violent sexual offense in 1995 and was sentenced to three

years of probation for sexually touching two women in a park.

While on probation, he committed three additional non-violent

sexual offenses against other female victims from 1996 to 1998,

each resulting in additional sentences to probation. In 2003,

A.R. raped a thirteen-year-old girl at knifepoint in her home

while her father was at work. He later admitted that he knew

the family and often saw the young victim when he used to work

with her father.

In 2004, A.R. pled guilty to aggravated sexual assault with

a weapon and was sentenced to a fifteen year prison term and

community supervision for life (CSL), and required to comply

with the provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23.

A.R. initially was evaluated at the Adult Diagnostic and

Treatment Center at Avenel (ADTC) but was found ineligible to

serve his sentence at the facility. Later, A.R. was transferred

to and received treatment at the ADTC from August 2011 until

March 2015, where "[h]e attended groups and focused issues

around family background and dysfunction and criminal

attitudes." A.R. later withdrew from treatment for some time in

2 A-0895-17T5 2012, and upon his return to the facility, he was placed on

Level 3 of the treatment. Prior to his release, the State

applied for A.R. to be civilly committed under the SVPA and on

October 4, 2016, the Law Division civilly committed him to the

STU.

On October 6, 2017, Judge Vincent N. Falcetano, conducted

A.R.'s first review hearing, which is the subject of this

appeal. At the hearing, A.R. did not challenge the fact he

committed the requisite sexually violent criminal offense or

suffered from a mental abnormality or personality disorder which

predisposes him to commit acts of sexual violence.1 The focus of

1 The Supreme Court has explained the proofs required at the initial hearing and subsequent reviews as follows:

At the commitment hearing, the State must establish three elements: (1) that the individual has been convicted of a sexually violent offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that as a result of his psychiatric abnormality or disorder, "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend[.]" Although the first two elements derive directly from the statute, to comport with substantive due process concerns, this Court interpreted the third statutory element as requiring the State to show that a person is "highly likely," not just "likely," to sexually reoffend.

(continued)

3 A-0895-17T5 the trial was the third required finding that A.R. is highly

likely to reoffend.

At the hearing, the State relied on the unrefuted expert

testimony of psychiatrist Roger Harris, M.D., who opined that

A.R.'s risk to sexually reoffend remained high. Because A.R.

elected not to participate in the evaluation, Harris was unable

to interview A.R. However, the doctor prepared a report on

September 11, 2017, based upon his review of clinical

certificates, presentence reports, prior Treatment Progress

Review Committee (TPRC) reports, STU treatment records, and

related documents, which were admitted into evidence. The State

also admitted into evidence without objection a report prepared

by Debra Roquet, Psy. D., a member of the STU's TPRC, which

largely supported Harris's findings and conclusions. Both

Harris and Roquet addressed the likelihood of A.R. reoffending

if he was no longer committed.

Harris's report highlighted A.R.'s prior sexual offenses

and stated that several involved young girls and children, and

were "frotteuristic or exhibitionistic in nature." He also

reported that many years after the 2003 offense, A.R. admitted

(continued) [In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).]

4 A-0895-17T5 to three separate doctors his attraction to the thirteen-year-

old girl, and that he had a "tendency to seek out vulnerable

persons," which "made him feel powerful."

Harris testified that A.R.'s sex offending history

demonstrated that he is unable to control his sexual drive "in

spite of his convictions and losing his liberty." He also noted

that empirical data shows that those who violate parole, as A.R.

had in the past, had an "increase[d] . . . risk to sexually

reoffend in the future[,]" which further supported his

conclusion that A.R. is at a higher risk of reoffending because

he is unable to control his sexual impulses.

Harris also testified that A.R.'s progression of sexual

acts and even his minor offenses "illustrate his cognitive

distortions[.]" He stated that in 2015, A.R. told a physician

that he sexually touched a woman because "he thought the woman

was purposely making her breasts go [up] and down while walking

in the park" in order to attract his attention. Harris

testified that this "illustrates several layers of his inability

to regulate himself, to overly interpret sexual issues," and

that "he thinks things are directed at him." In addition, Harris

explained that A.R. exhibits these same characteristics while

incarcerated. For example, when he is challenged, "he gets very

upset and becomes quite aggressive," and has reported that "he

5 A-0895-17T5 feels that officers are targeting him and making sexual comments

to him."

Harris stated further that another factor that supported

his assessment of A.R. is that "he has conflict within his peer

relationships[.]" Specifically, he stated that A.R. admitted to

another physician that he smacked his girlfriend because "he

felt she was harassing him." Harris also determined that even

though A.R. had "consensual sexual relations" with his

girlfriend and a wife in a previous marriage, he still needed to

"sexually gratify himself . . . by engaging in . . . other

illegal paraphilic acts."

With respect to his substance abuse history, Harris

testified that A.R. "reported drug use as a way to avoid prison

sentencing[,]" and was admitted to a drug program, but "left

that program without consent[.]" The doctor commented that with

A.R., "it's hard to know what's accurate and what is not

accurate," and he could not determine whether A.R. had a drug

problem or was being manipulative when seeking drug treatment.

Similarly, Harris found that at times it appeared as though A.R.

"malinger[ed] and feign[ed] psychiatric symptoms to once again

attempt to decrease his responsibility [for] his behavior."

Harris reviewed A.R.'s treatment history and found that

A.R. had not improved. He stated that prior to going to STU,

6 A-0895-17T5 A.R. engaged in "sex offender treatment," where he had poor

attendance and did not complete the program. Since his time at

STU, Harris testified that A.R. "is difficult to engage[,]" and

"is essentially just learning how to use treatment at this

point[.]" Based upon his review, the doctor concluded that A.R.

"has demonstrated very poor volitional control," and "cognitive

distortion," which affects him emotionally.

Harris diagnosed A.R. with other specified paraphilic

disorder, other personality disorder with antisocial traits, and

borderline intellectual functioning. He explained that A.R.

does not meet the "full criteria for antisocial personality

disorder," but he has many traits including, "impulsivity,

irritability, . . . aggressiveness, reckless disregard for the

safety of others, [and] failure to conform to social norms."

The doctor also diagnosed A.R. with cocaine and alcohol use

disorders, although he reminded the court that A.R.'s reporting

of his drug use history was unreliable. If accurate, Harris

concluded that A.R.'s drug use "lowers his inhibitions," making

it more difficult to control his sexual drive and increasing the

chances that he will sexually act out.

7 A-0895-17T5 Harris also reported that A.R. scored seven on the Static-

99R,2 indicating a "well above average" risk to sexually

reoffend. However, he pointed out that "[t]his is not a full

estimate for his risk to sexually offend" because it "does not

address dynamic or psychological factors[,]" such as A.R.'s

"multiple deviant arousals," failed supervision, poor cognitive

problem solving and poor self-regulation. According to Harris,

A.R. "remains a high risk to sexually reoffend and continues to

meet the criteria for civil commitment under" the statute.

Roquet's report that was prepared after the TPRC examined

A.R. on September 13, 2017, stated that A.R. was placed in Phase

Two3 when he was civilly committed to the STU. Based on A.R.'s

treatment plan review from May 2017, the committee observed that

the treatment team recommended that A.R. remain in the same

phase. The TPRC concluded that A.R.'s progress in treatment has

2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., 217 N.J. at 164 n.9. Our Supreme Court "has 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.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 3 At the hearing, Harris defined Phase Two of treatment at STU as "the phase where men learn how to use treatment[,]" and "how to engage with each other and . . . how the therapeutic process works."

8 A-0895-17T5 not mitigated his risk for sexual recidivism, and that he is

"highly likely to reoffend if not confined to the STU."

Roquet explained that there are several indicators that

support the TPRC's finding, including A.R.'s Static-99 score,

his high range dynamic risk factors, antisocial personality,

psychopathic personality traits, and substance abuse. According

to the report, A.R. should continue in Phase Two as he is "not

yet being open in treatment" and is still in the early phase of

treatment.

In an oral opinion placed on the record after the

presentation of the evidence, Judge Falcetano found by clear and

convincing evidence that A.R. was a sexually violent predator in

need of continued civil commitment in a secure facility under

the SVPA. The judge found Harris "qualified to render the

opinions that he did, and [found] his testimony to be eminently

credible." He observed that the STU report that was referenced

in Harris's testimony, indicated that A.R. "is still adapting to

the [facility] and to treatment, that he presents with a number

of risk factors which need to be addressed over time[,]" and he

"scores well above average in the risk to reoffend category"

that requires him to continue in Phase Two of his current

9 A-0895-17T5 The judge concluded by clear and convincing evidence that

A.R. "suffers from a mental abnormality or personality disorder

that . . . can only be mitigated by sex offender treatment,"

that the disorder "affects the person cognitively, emotionally

or volitionally, which pred[isposes] the person to sexual

violence[,]" and that A.R. is "presently highly likely to

sexually reoffend, and in need of confinement at the STU." On

the same day, Judge Falcetano entered a memorializing order

continuing A.R.'s commitment and this appeal followed.

On appeal,4 A.R. again does not challenge the finding that

he committed a sexually violent offense, and that he was

"properly diagnosed with a mental abnormality or personality

disorder" that predisposes him to commit acts of sexual

violence. Rather, he argues that Judge Falcetano erred in

concluding that the State met its burden of proof that he is

highly likely to reoffend because the judge "did not weigh the

evidence properly[,]" and if he had, he "would have come up with

a different conclusion[.]"

A.R. relies on In re Civil Commitment of V.A., 357 N.J.

Super. 55 (App. Div. 2003), arguing that the judge should have

4 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument.

10 A-0895-17T5 considered the goal of gradual de-escalation in restraints

permitting a conditional release because he "no longer meets the

criteria for civil commitment." He also asserts that the judge

"inappropriately gave weight to other sex offenses" that only

involved "frotteuristic" behavior "to make [his] determination

that A.R. was highly likely to commit acts of sexual violence."

Further, A.R. contends that given his time at ADTC and STU, "he

has had many years of exposure to sex offender treatment," which

is sufficient "to make a finding that [he] is no longer highly

likely" to reoffend. We reject these arguments and affirm.

"The scope of appellate review of a commitment

determination is extremely narrow. The judges who hear SVPA

cases generally are 'specialists' and 'their expertise in the

subject' is entitled to 'special deference.'" R.F., 217 N.J. at

174 (citations omitted).

"The SVPA authorizes the involuntary commitment of an

individual believed to be a 'sexually violent predator' as

defined by the Act. The definition of 'sexually violent

predator' requires proof of past sexually violent behavior

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

re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation

omitted). It also requires that the person "suffer[] from a

mental abnormality or personality disorder that makes the person

11 A-0895-17T5 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.

The same standard that supports the initial involuntary

commitment of a sex offender under the SVPA applies to the

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

N.J. Super. 450, 452-53 (App. Div. 2002). As noted earlier, 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, while "[a] trial judge is 'not required

to accept all or any part of [an] expert opinion[,]'" he or she

may "place[] decisive weight on [the] expert." R.F., 217 N.J.

at 156, 174 (second alteration in original) (citation omitted).

Furthermore, "an appellate court should not modify a trial

12 A-0895-17T5 court's determination either to commit or release an individual

unless 'the record reveals a clear mistake.'" Id. at 175

(quoting In re D.C., 146 N.J. 31, 58 (1996)).

We find no clear mistake on this record. We are satisfied

that the record amply supports Judge Falcetano's decision,

finding that A.R. suffers from paraphilia, among other mental

abnormalities or personality disorders, a necessary predicate

for continued commitment under the SVPA. See, e.g., In re Civil

Commitment of D.Y., 218 N.J. 359, 381 (2014). Based on credible

expert testimony, the judge determined that A.R.'s disorders,

past behavior and treatment progress demonstrated that he was

highly likely to engage in acts of sexual violence unless

confined. The judge's determination, 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. Contrary to A.R.'s assertions, this was

not a case where the State was "unable to justify the continued

confinement of the committee based on the progress the

committee" has made so as to warrant "intermediate levels of

restraint." V.A., 357 N.J. Super. at 64 (quoting E.D., 353 N.J.

Super. at 456).

Affirmed.

13 A-0895-17T5