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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4228-14T2
IN THE MATTER OF THE CIVIL COMMITMENT OF C.E.G., SVP-452-07.
________________________________________________________________
Submitted February 28, 2017 – Decided July 10, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-452- 07.
Joseph E. Krakora, Public Defender, attorney for appellant C.E.G. (Nancy C. Hayes, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent State of New Jersey (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).
PER CURIAM
C.E.G. appeals from a judgment entered by the Law Division
continuing his civil commitment to the Special Treatment Unit
(STU) pursuant to the Sexually Violent Predators Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. On appeal, he contends that there was no basis for the court to continue his commitment, because his
conviction for the New Jersey offense that served as the predicate
for his original commitment was vacated as a result of his
successful petition for post conviction relief (PCR). He also
argues there was insufficient evidence to sustain the court's
determination that he was a "sexually violent predator" or that
there was a "risk of future recidivism." We disagree and affirm.
We last addressed C.E.G.'s commitment in a 2012 unreported
decision1 in which we summarized his history of violent crimes and
his initial commitment. We stated:
C.E.G. was civilly committed under the SVPA by a final order entered on September 7, 2007. We affirmed that order. [C.E.G. I, supra, slip op. at 1.] We described the factual background of C.E.G.'s commitment as follows:
To summarize his history of criminal convictions, from the time he was eighteen to the time he was forty- two, C.E.G. attempted to anally penetrate a three-year old girl in Virginia in 1980; tried to rape a twenty-seven year old female neighbor in 1995; and molested a thirteen-year old boy in 2004. He was also involved in at least two non-sexual offenses in which he was
1 This is our fourth review and affirmance of the trial court's decisions to continue C.E.G's commitment. See In re Civil Commitment of C.E.G. (C.E.G. I), No. A-0823-07 (App. Div. Nov. 12, 2009); In re Civil Commitment of C.E.G. (C.E.G. II), No. A-2953- 09 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 101 (2011); In re Civil Commitment of C.E.G. (C.E.G. III), No. A-1624-11 (App. Div. June 26, 2012), certif. denied, 213 N.J. 567 (2013).
2 A-4228-14T2 armed with a gun. C.E.G. spent his prison sentence for the 2004 offense in the New Jersey State facility for sex offenders at Avenel (ADTC). While at ADTC, he made little progress in treatment, "did not acknowledge his sexually inappropriate behavior, and he continued to minimize or deny the offenses."
[C.E.G. I, supra, slip op. at 2-3).]
While at the STU, C.E.G. has declined to participate in treatment. He also declined to be interviewed for the psychological report prepared for his review hearing and declined to attend the hearing itself, which was held on October 20, 2011.
[C.E.G. III, supra, slip op. at 1-2.]
C.E.G. has continued to refuse to participate in treatment
or be interviewed for the psychological reports prepared for his
review hearings. However, since our last review, C.E.G.
successfully pursued a PCR petition that resulted in the vacating
of his 2005 conviction for third-degree endangering the welfare
of a child (EWC), N.J.S.A. 2C:24-4(a), which was also the only
sexual violent offense he committed in New Jersey. He subsequently
pled guilty to harassment, N.J.S.A. 2C:33-4, a disorderly persons
offense.2
2 The PCR court allowed C.E.G. to withdraw his original plea.
3 A-4228-14T2 Relying on the vacating of his conviction for EWC, C.E.G.
filled a motion seeking an order to vacate his original commitment,
arguing that harassment did not constitute a predicate offense
under the SVPA. In response, Judge Phillip M. Freedman ordered
the State to file an updated petition for civil commitment. The
State amended its petition to rely upon C.E.G.'s 1995 Virginia
conviction for attempted rape as the predicate offense.
On April 24, 2015, Judge Freedman held what he characterized
as both a review hearing and "a re-hearing based on the new status
of [C.E.G.'s] criminal history." At the hearing, the State
presented the unrebutted expert testimony of Dr. John P. Zincone,
a psychiatrist, and Dr. Laura Carmignani, a psychologist. C.E.G.
offered no testimony or other evidence.
The State's experts confirmed that C.E.G. refused to be
interviewed by them or participate in any treatment programs and
remains on "refusal status." Because C.E.G. refused to be
interviewed, the experts relied solely upon C.E.G.'s criminal
history and institutional records, including reports from other
experts prepared over the years, to formulate their opinions.
Zincone testified C.E.G. suffers from anti-social personality
disorder and other specified paraphilic disorder. He stated the
fact that C.E.G.'s conviction for EWC was vacated did not change
the underlying facts of his 2004 offense, which C.E.G. recounted
4 A-4228-14T2 to a doctor at ADTC. Zincone noted C.E.G. has a substantial
criminal history involving victims in a "broad age range,"
including "sexual activity with children in the post-pubescent
[and] pre-pubescent age range, [and] non-consenting sex with an
adult," in addition to violent non-sexual criminal offenses. The
doctor opined that the aggregate of those offenses raises the risk
C.E.G. will reoffend if released. Moreover, C.E.G.'s records
reflected that he has made statements while at ADTC about not
being able to control his sexual impulses and "indicat[ing he had]
thoughts of having sex with someone much younger than himself."
Zincone concluded C.E.G. "suffers from a mental abnormality or
personality disorder which predispose[s] him to sexually
reoffend," with a Static-99R score that reflects he is at a
moderate to high risk of reoffending.
Carmignani's testimony paralleled Zincone's observations,
diagnoses, and conclusions, adding that the Static-99R testing
manual "states that overturned convictions can still be counted
as the index offense" for purposes of determining the likelihood
the subject would reoffend. She also noted, the STU has required
that C.E.G. participate "in the treatment orientation process
group at least once a week" in an attempt "to convince him to come
off treatment refusal status and to engage in treatment."
5 A-4228-14T2 On May 1, 2015, Judge Freedman entered a judgment continuing
C.E.G.'s commitment and placed his reasons on the record on the
same date. In his thorough oral decision, the judge reviewed the
history of C.E.G.'s commitment and the predicate offense. He also
discussed the experts' reports admitted into evidence, their
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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-4228-14T2
IN THE MATTER OF THE CIVIL COMMITMENT OF C.E.G., SVP-452-07.
________________________________________________________________
Submitted February 28, 2017 – Decided July 10, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-452- 07.
Joseph E. Krakora, Public Defender, attorney for appellant C.E.G. (Nancy C. Hayes, Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General, attorney for respondent State of New Jersey (Melissa Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).
PER CURIAM
C.E.G. appeals from a judgment entered by the Law Division
continuing his civil commitment to the Special Treatment Unit
(STU) pursuant to the Sexually Violent Predators Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. On appeal, he contends that there was no basis for the court to continue his commitment, because his
conviction for the New Jersey offense that served as the predicate
for his original commitment was vacated as a result of his
successful petition for post conviction relief (PCR). He also
argues there was insufficient evidence to sustain the court's
determination that he was a "sexually violent predator" or that
there was a "risk of future recidivism." We disagree and affirm.
We last addressed C.E.G.'s commitment in a 2012 unreported
decision1 in which we summarized his history of violent crimes and
his initial commitment. We stated:
C.E.G. was civilly committed under the SVPA by a final order entered on September 7, 2007. We affirmed that order. [C.E.G. I, supra, slip op. at 1.] We described the factual background of C.E.G.'s commitment as follows:
To summarize his history of criminal convictions, from the time he was eighteen to the time he was forty- two, C.E.G. attempted to anally penetrate a three-year old girl in Virginia in 1980; tried to rape a twenty-seven year old female neighbor in 1995; and molested a thirteen-year old boy in 2004. He was also involved in at least two non-sexual offenses in which he was
1 This is our fourth review and affirmance of the trial court's decisions to continue C.E.G's commitment. See In re Civil Commitment of C.E.G. (C.E.G. I), No. A-0823-07 (App. Div. Nov. 12, 2009); In re Civil Commitment of C.E.G. (C.E.G. II), No. A-2953- 09 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 101 (2011); In re Civil Commitment of C.E.G. (C.E.G. III), No. A-1624-11 (App. Div. June 26, 2012), certif. denied, 213 N.J. 567 (2013).
2 A-4228-14T2 armed with a gun. C.E.G. spent his prison sentence for the 2004 offense in the New Jersey State facility for sex offenders at Avenel (ADTC). While at ADTC, he made little progress in treatment, "did not acknowledge his sexually inappropriate behavior, and he continued to minimize or deny the offenses."
[C.E.G. I, supra, slip op. at 2-3).]
While at the STU, C.E.G. has declined to participate in treatment. He also declined to be interviewed for the psychological report prepared for his review hearing and declined to attend the hearing itself, which was held on October 20, 2011.
[C.E.G. III, supra, slip op. at 1-2.]
C.E.G. has continued to refuse to participate in treatment
or be interviewed for the psychological reports prepared for his
review hearings. However, since our last review, C.E.G.
successfully pursued a PCR petition that resulted in the vacating
of his 2005 conviction for third-degree endangering the welfare
of a child (EWC), N.J.S.A. 2C:24-4(a), which was also the only
sexual violent offense he committed in New Jersey. He subsequently
pled guilty to harassment, N.J.S.A. 2C:33-4, a disorderly persons
offense.2
2 The PCR court allowed C.E.G. to withdraw his original plea.
3 A-4228-14T2 Relying on the vacating of his conviction for EWC, C.E.G.
filled a motion seeking an order to vacate his original commitment,
arguing that harassment did not constitute a predicate offense
under the SVPA. In response, Judge Phillip M. Freedman ordered
the State to file an updated petition for civil commitment. The
State amended its petition to rely upon C.E.G.'s 1995 Virginia
conviction for attempted rape as the predicate offense.
On April 24, 2015, Judge Freedman held what he characterized
as both a review hearing and "a re-hearing based on the new status
of [C.E.G.'s] criminal history." At the hearing, the State
presented the unrebutted expert testimony of Dr. John P. Zincone,
a psychiatrist, and Dr. Laura Carmignani, a psychologist. C.E.G.
offered no testimony or other evidence.
The State's experts confirmed that C.E.G. refused to be
interviewed by them or participate in any treatment programs and
remains on "refusal status." Because C.E.G. refused to be
interviewed, the experts relied solely upon C.E.G.'s criminal
history and institutional records, including reports from other
experts prepared over the years, to formulate their opinions.
Zincone testified C.E.G. suffers from anti-social personality
disorder and other specified paraphilic disorder. He stated the
fact that C.E.G.'s conviction for EWC was vacated did not change
the underlying facts of his 2004 offense, which C.E.G. recounted
4 A-4228-14T2 to a doctor at ADTC. Zincone noted C.E.G. has a substantial
criminal history involving victims in a "broad age range,"
including "sexual activity with children in the post-pubescent
[and] pre-pubescent age range, [and] non-consenting sex with an
adult," in addition to violent non-sexual criminal offenses. The
doctor opined that the aggregate of those offenses raises the risk
C.E.G. will reoffend if released. Moreover, C.E.G.'s records
reflected that he has made statements while at ADTC about not
being able to control his sexual impulses and "indicat[ing he had]
thoughts of having sex with someone much younger than himself."
Zincone concluded C.E.G. "suffers from a mental abnormality or
personality disorder which predispose[s] him to sexually
reoffend," with a Static-99R score that reflects he is at a
moderate to high risk of reoffending.
Carmignani's testimony paralleled Zincone's observations,
diagnoses, and conclusions, adding that the Static-99R testing
manual "states that overturned convictions can still be counted
as the index offense" for purposes of determining the likelihood
the subject would reoffend. She also noted, the STU has required
that C.E.G. participate "in the treatment orientation process
group at least once a week" in an attempt "to convince him to come
off treatment refusal status and to engage in treatment."
5 A-4228-14T2 On May 1, 2015, Judge Freedman entered a judgment continuing
C.E.G.'s commitment and placed his reasons on the record on the
same date. In his thorough oral decision, the judge reviewed the
history of C.E.G.'s commitment and the predicate offense. He also
discussed the experts' reports admitted into evidence, their
testimony, and their recommendations for continued commitment. He
also considered the reports about C.E.G.'s progress in
institutional programs, including his refusal to participate in
treatment. Judge Freedman found by clear and convincing evidence
that C.E.G.
suffer[s] from a mental abnormality in the form of paraphilia [and other] diagnoses, and a personality disorder . . . that affect him mostly cognitively so as to predispose him . . . to engage in acts of sexual violence. And that if released, he would be -- would have serious difficulty controlling his sexually violent behavior and would, for the reasonably foreseeable future, be highly likely to engage in acts of sexual violence.
On appeal, C.E.G. argues:
POINT I. THE COURT ERRED BY FAILING TO GIVE PROPER WEIGHT TO [C.E.G.'s] CHANGED CIRCUMSTANCES, WHICH SHOULD HAVE UNDERMINED THE STATE'S CASE.
POINT II.
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT [C.E.G.] IS A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY
6 A-4228-14T2 HIGH LEVEL TO JUSTIFY CONTINUED CIVIL COMMITMENT UNDER THE CURRENT TREATMENT PLAN.
The scope of our review of a trial court's commitment decision
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
must defer to the trial judge's findings of fact so long as they
are supported by sufficient credible evidence in the record. Id.
at 175. Deference to the trial judge's factual findings is
appropriate because the judge had the "opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." Id. at 174 (quoting State v. Johnson, 42
N.J. 146, 161 (1964)).
The SVPA permits the involuntary civil commitment of "'a
person who has been convicted . . . of a sexually violent offense'
who 'suffers 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.'" Id. at 173 (quoting N.J.S.A. 30:4-27.26). To obtain
an order of commitment under the SVPA, the State must prove "by
clear and convincing evidence," N.J.S.A. 30:4-27.32(a),
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
7 A-4228-14T2 not control his or her sexually violent behavior and will reoffend."
[Ibid. (citations omitted) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).]
"Clear and convincing evidence" is "evidence that produces
'a firm belief or conviction' that the allegations are true" and
"is 'so clear, direct[,] . . . weighty and convincing' that the
factfinder can 'come to a clear conviction' of the truth without
hesitancy." R.F., supra, 217 N.J. at 173 (quoting In re Jobes,
108 N.J. 394, 407 (1987)).
Applying these guiding principles, we turn first to C.E.G.'s
argument that the judge should not have relied upon an out-of-
state conviction as a predicate offense, and we conclude it is
without sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the
reasons stated by Judge Freedman in his oral decision. We add the
following brief comments.
The PCR court's vacating of C.E.G.'s conviction for EWC did
not establish changed circumstances, and Judge Freedman correctly
relied upon his out-of-state conviction as a predicate offense to
maintain his commitment. Out-of-state convictions that
"correspond sufficiently to sexual assaults proscribed under New
Jersey law and qualifying as predicate offenses under the SVPA"
8 A-4228-14T2 can form the predicate offense for commitment, even though they
occurred in another state and years earlier. See In re Civil
Commitment of R.Z.B., 392 N.J. Super. 22, 44 (App. Div.), certif.
denied, 192 N.J. 296 (2007).
Equally without merit is C.E.G.'s challenge based upon the
State's failure to file new certificates with its amended petition,
see N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.28, and his claim that
the evidence adduced at trial was insufficient. Contrary to his
argument, we will not vacate an order for commitment due to a
technical deficiency in an underlying certificate when "the
totality of the evidence" establishes defendant was a sexually
violent predator suffering from a mental condition that made it
highly likely he would reoffend, In re Civil Commitment of T.J.N.,
390 N.J. Super. 218, 226 (App. Div. 2007), especially when we
conclude, as here, the judge's findings were supported by
substantial credible evidence, despite C.E.G.'s ongoing refusal
to be interviewed for the reports.
Affirmed.
9 A-4228-14T2