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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0217-15T2
IN THE MATTER OF THE CIVIL COMMITMENT OF C.C. SVP-705-14 _______________________________________
Submitted May 2, 2017 – Decided July 18, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 705-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Nancy C. Hayes, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).
PER CURIAM
This is an appeal from an order of civil commitment under the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -
27.38. In 1989, appellant, C.C., was convicted in Florida of two
counts of armed sexual battery, armed robbery, burglary, armed
kidnapping and committing a lewd act in the presence of a child.
These convictions arose out of C.C.'s forcible entry into the home
of the victim, whom he initially approached about purchasing a
vehicle the victim was selling. Once he forcibly entered her
home, C.C. sexually assaulted the victim in the presence of her
two-year old child and committed the robbery. The court imposed
a twenty-five year custodial sentence in a Florida State prison.
In addition, he was subject to parole supervision for life and
registration as a sex offender. Upon his release, he relocated
to New Jersey where he lived with his sister.
In January 2011, C.C. pled guilty to second-degree sexual
assault of his seventeen-year old niece, whom he impregnated.
Prior to sentencing, C.C. was sent to the Adult Diagnostic
Treatment Center (ADTC) in Avenel for the purpose of determining
his eligibility for sentencing under the New Jersey Sex Offender
Act (SOA), N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of
repetitive and compulsive sexual behavior). It was determined
that he was not eligible for sentencing under the SOA. At
sentencing, the court imposed a five-year custodial sentence,
parole supervision for life, Megan's Law registration requirements
and a Megan's Law Restraining Order.
2 A-0217-15T2 On November 7, 2014, prior to C.C. completing his sentence,
the State filed a petition seeking C.C.'s involuntary commitment
under the SVPA. The trial court conducted a two-day commitment
hearing. The State presented two expert witnesses, psychiatrist
Roger Harris, M.D., and psychologist Nicole Paolillo, Ph.D. C.C.
presented one expert witness, psychologist Christoper P. Lorah,
Ph.D.
Dr. Paolillo concluded that C.C. suffers from a mental
abnormality or personality disorder that predisposes him to
sexually re-offend. She found that his personality disorder
included anti-social features, which are reflected in his criminal
background, impulsivity, poor judgment, substance abuse, and lack
of concern for others. She concluded that these traits predispose
C.C. to commit sexual offenses because they provide him with the
motivation or the lack of concern for others when he wants to meet
his needs.
Dr. Paolillo noted that C.C.'s PCL-R1 score was 27.8. She
explained that although this score does not meet the threshold of
psychopathy, it is sufficient to demonstrate that such traits are
1 The Hare Psychopath Checklist - Revised (PCL-R) is a diagnostic tool utilized as a predictor of future violence. http://www.statisticssolutions.com/hare-psychopathy-checklist- revised-pcl-r/ (last visited June 19, 2017)
3 A-0217-15T2 present. Further, on his Static-99R assessment2, C.C. received a
score of seven. This score placed C.C. in the high-risk category.
The State's second expert, Dr. Harris, similarly opined that
C.C. suffers from a mental abnormality or a personality disorder,
which predisposes him to sexually re-offend. He specifically
diagnosed C.C. with antisocial personality disorder, finding that
C.C.'s behavior spoke to antisocial attitudes and a pervasive
pattern of disregard for the rights of others.
Dr. Harris did not, however, diagnose C.C. as suffering from
a sexual pathology. He explained that although C.C. meets the
criteria for paraphilia, C.C. did not reveal what motivated him
in committing the sexual assaults. Thus, Dr. Harris expressed the
opinion that C.C.'s actions were characterized by an inability to
control his impulsivity, and "taking opportunities to sexually
gratify himself in spite of the impact it has on others[.]"
Consequently, while acknowledging that antisocial personality
disorder does not predispose a person to sexually re-offend, Dr.
Harris concluded that C.C.'s mental abnormality led him to sexually
offend.
2 Static 99 is a ten-point actuarial assessment instrument utilized to assess the risk of re-offense on the part of sex offenders. Static-99/Static-99R, Static99 Clearinghouse, www.static99.org (last visited June 13, 2017).
4 A-0217-15T2 Dr. Lorah, in his testimony on behalf of C.C., concluded that
although C.C. needed intervention to address his acting out
sexually, he did not believe the level of intervention required
the most restrictive setting posed by a civil commitment. Dr.
Lorah did not diagnose C.C. as suffering from a personality
disorder because C.C.'s history had "not demonstrated evidence of
conduct disorder prior to the age of [fifteen]," which he testified
is "a mandatory condition for the full diagnosis." He ultimately
concluded that C.C. was less likely to re-offend.
Based upon the evidence presented at the hearing, the court
found C.C. to be a sexually violent predator and requires continued
involuntary commitment as a sexually violent predator. In reaching
its decision, the court credited the testimony of the State's two
experts and found the State presented clear and convincing evidence
that: (1) C.C. has been convicted of sexually violent offenses;
(2) he suffers from a mental abnormality or personality disorder;
(3) has had a long history of antisocial behavior that predisposes
him to sexual violence; and, (4) is presently highly likely to
commit further acts of sexual violence if not confined for control,
care, and treatment. The court entered an order of civil
commitment to the Special Treatment Unit. The present appeal
followed.
5 A-0217-15T2 On appeal, C.C. advances one argument. He contends the State
failed to prove by clear and convincing evidence that he is a
sexually violent predator and the risk that he would engage in
future acts of sexual violence "is at a sufficiently high level
to justify continued civil commitment under the current treatment
plan."
We reject the argument advanced. We affirm the order of
commitment under the SVPA, substantially for the reasons expressed
in Judge Mulvihill's comprehensive oral opinion of May 26, 2015.
We add the following comments.
Our scope of review of a SVPA commitment trial "is extremely
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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-0217-15T2
IN THE MATTER OF THE CIVIL COMMITMENT OF C.C. SVP-705-14 _______________________________________
Submitted May 2, 2017 – Decided July 18, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 705-14.
Joseph E. Krakora, Public Defender, attorney for appellant (Nancy C. Hayes, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).
PER CURIAM
This is an appeal from an order of civil commitment under the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -
27.38. In 1989, appellant, C.C., was convicted in Florida of two
counts of armed sexual battery, armed robbery, burglary, armed
kidnapping and committing a lewd act in the presence of a child.
These convictions arose out of C.C.'s forcible entry into the home
of the victim, whom he initially approached about purchasing a
vehicle the victim was selling. Once he forcibly entered her
home, C.C. sexually assaulted the victim in the presence of her
two-year old child and committed the robbery. The court imposed
a twenty-five year custodial sentence in a Florida State prison.
In addition, he was subject to parole supervision for life and
registration as a sex offender. Upon his release, he relocated
to New Jersey where he lived with his sister.
In January 2011, C.C. pled guilty to second-degree sexual
assault of his seventeen-year old niece, whom he impregnated.
Prior to sentencing, C.C. was sent to the Adult Diagnostic
Treatment Center (ADTC) in Avenel for the purpose of determining
his eligibility for sentencing under the New Jersey Sex Offender
Act (SOA), N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of
repetitive and compulsive sexual behavior). It was determined
that he was not eligible for sentencing under the SOA. At
sentencing, the court imposed a five-year custodial sentence,
parole supervision for life, Megan's Law registration requirements
and a Megan's Law Restraining Order.
2 A-0217-15T2 On November 7, 2014, prior to C.C. completing his sentence,
the State filed a petition seeking C.C.'s involuntary commitment
under the SVPA. The trial court conducted a two-day commitment
hearing. The State presented two expert witnesses, psychiatrist
Roger Harris, M.D., and psychologist Nicole Paolillo, Ph.D. C.C.
presented one expert witness, psychologist Christoper P. Lorah,
Ph.D.
Dr. Paolillo concluded that C.C. suffers from a mental
abnormality or personality disorder that predisposes him to
sexually re-offend. She found that his personality disorder
included anti-social features, which are reflected in his criminal
background, impulsivity, poor judgment, substance abuse, and lack
of concern for others. She concluded that these traits predispose
C.C. to commit sexual offenses because they provide him with the
motivation or the lack of concern for others when he wants to meet
his needs.
Dr. Paolillo noted that C.C.'s PCL-R1 score was 27.8. She
explained that although this score does not meet the threshold of
psychopathy, it is sufficient to demonstrate that such traits are
1 The Hare Psychopath Checklist - Revised (PCL-R) is a diagnostic tool utilized as a predictor of future violence. http://www.statisticssolutions.com/hare-psychopathy-checklist- revised-pcl-r/ (last visited June 19, 2017)
3 A-0217-15T2 present. Further, on his Static-99R assessment2, C.C. received a
score of seven. This score placed C.C. in the high-risk category.
The State's second expert, Dr. Harris, similarly opined that
C.C. suffers from a mental abnormality or a personality disorder,
which predisposes him to sexually re-offend. He specifically
diagnosed C.C. with antisocial personality disorder, finding that
C.C.'s behavior spoke to antisocial attitudes and a pervasive
pattern of disregard for the rights of others.
Dr. Harris did not, however, diagnose C.C. as suffering from
a sexual pathology. He explained that although C.C. meets the
criteria for paraphilia, C.C. did not reveal what motivated him
in committing the sexual assaults. Thus, Dr. Harris expressed the
opinion that C.C.'s actions were characterized by an inability to
control his impulsivity, and "taking opportunities to sexually
gratify himself in spite of the impact it has on others[.]"
Consequently, while acknowledging that antisocial personality
disorder does not predispose a person to sexually re-offend, Dr.
Harris concluded that C.C.'s mental abnormality led him to sexually
offend.
2 Static 99 is a ten-point actuarial assessment instrument utilized to assess the risk of re-offense on the part of sex offenders. Static-99/Static-99R, Static99 Clearinghouse, www.static99.org (last visited June 13, 2017).
4 A-0217-15T2 Dr. Lorah, in his testimony on behalf of C.C., concluded that
although C.C. needed intervention to address his acting out
sexually, he did not believe the level of intervention required
the most restrictive setting posed by a civil commitment. Dr.
Lorah did not diagnose C.C. as suffering from a personality
disorder because C.C.'s history had "not demonstrated evidence of
conduct disorder prior to the age of [fifteen]," which he testified
is "a mandatory condition for the full diagnosis." He ultimately
concluded that C.C. was less likely to re-offend.
Based upon the evidence presented at the hearing, the court
found C.C. to be a sexually violent predator and requires continued
involuntary commitment as a sexually violent predator. In reaching
its decision, the court credited the testimony of the State's two
experts and found the State presented clear and convincing evidence
that: (1) C.C. has been convicted of sexually violent offenses;
(2) he suffers from a mental abnormality or personality disorder;
(3) has had a long history of antisocial behavior that predisposes
him to sexual violence; and, (4) is presently highly likely to
commit further acts of sexual violence if not confined for control,
care, and treatment. The court entered an order of civil
commitment to the Special Treatment Unit. The present appeal
followed.
5 A-0217-15T2 On appeal, C.C. advances one argument. He contends the State
failed to prove by clear and convincing evidence that he is a
sexually violent predator and the risk that he would engage in
future acts of sexual violence "is at a sufficiently high level
to justify continued civil commitment under the current treatment
plan."
We reject the argument advanced. We affirm the order of
commitment under the SVPA, substantially for the reasons expressed
in Judge Mulvihill's comprehensive oral opinion of May 26, 2015.
We add the following comments.
Our scope of review of a SVPA commitment trial "is extremely
narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014)
(quoting In re D.C., 146 N.J. 31, 58 (1996)). We accord "deference
to the findings of [] trial judges because they have the
'opportunity to hear and see the witnesses and to have the "feel"
of the case, which a reviewing court cannot enjoy.'" Ibid.
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The judges
who hear SVPA cases are 'specialists' and 'their expertise in the
subject' is entitled to 'special deference.'" Id. at 173.
Accordingly, a trial court's determination is accorded substantial
deference and may "be modified only if the record reveals a clear
mistake." D.C., supra, 146 N.J. at 58.
6 A-0217-15T2 Under the SVPA, "[i]f the court finds by clear and convincing
evidence that the person needs continued involuntary commitment
as a sexually violent predator, it shall issue an order authorizing
the involuntary commitment of the person to a facility designated
for the custody, care and treatment of sexually violent predators."
N.J.S.A. 30:4-27.32(a). Three requirements must be satisfied to
classify a person as a sexually violent predator:
(1) that the individual has been convicted of a sexually violent offense; (2) that he [or she] suffers from a mental abnormality or personality disorder; and (3) that as a result of his [or her] psychiatric abnormality or disorder, "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend."
[R.F., supra, 217 N.J. at 173 (citations omitted) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)); see also N.J.S.A. 30:4-27.26 (enumerating the three requirements).]
The SVPA defines a "[m]ental abnormality," as a "condition
that affects a person's emotional, cognitive or volitional
capacity in a manner that predisposes that person to commit acts
of sexual violence." Ibid. Although the SVPA does not define
"personality disorder," our Supreme Court has held that it is
sufficient if the offender has a mental condition that adversely
affects "an individual's ability to control his or her sexually
7 A-0217-15T2 harmful conduct." See W.Z., supra, 173 N.J. at 127; see also
N.J.S.A. 30:4-27.26.
It is undisputed that C.C. committed two sexually violent
offenses in 1988 and 2009. It was also established through the
credible testimony and findings of the State's two experts that
C.C. suffers from a mental abnormality or personality disorder and
is highly likely to sexually reoffend in the future. Although the
experts reached slightly different conclusions regarding C.C.'s
personality disorder, both experts based their conclusions on
C.C.'s criminal background, impulsivity, poor judgment, substance
abuse problems, failure to conform to social norms, and reckless
disregard for the rights of others. Further, both experts reviewed
C.C.'s records, conducted in-person interviews, and considered the
past and present condition of C.C. We discern no basis in the
record to disturb Judge Mulvihill's findings.
Affirmed.
8 A-0217-15T2