IN THE MATTER OF THE CIVIL COMMITMENT OF E.D., SVP-075-00 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 21, 2018
• Docket: A-0759-17T5
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0759-17T5

IN THE MATTER OF THE CIVIL COMMITMENT OF E.D., SVP-075-00. ________________________________

Argued March 22, 2018 – Decided June 21, 2018

Before Judges Haas and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 075-00.

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

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

PER CURIAM

E.D. appeals from the September 27, 2017 Law Division order

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 E.D.'s prior criminal history or the

events that followed his original admission to the STU in 2000.

They are recounted at length in our Supreme Court's decision, In

re Civil Commitment of E.D., 183 N.J. 536 (2005), as well as in

our prior opinions, In re Civil Commitment of E.D., 353 N.J. Super.

450 (App. Div. 2002), In re Civil Commitment of E.D., No. A-3984-

02 (App. Div. May 14, 2004), In re Civil Commitment of E.D., No.

A-0685-05 (App. Div. Jan. 14, 2008), and In re Civil Commitment

of E.D., No. A-5263-13 (App. Div. Oct. 28, 2016), certif. denied,

230 N.J. 487 (2017). Suffice it to say that E.D., born September

1957, has an extensive juvenile and adult criminal history, which

began at age fourteen.

Initially, E.D.'s offenses were primarily non-sexual theft,

assault, and drug-related charges. However, in the 1970's, his

offenses became more violent and developed sexual overtones.

Specifically, his 1977 conviction arose out of his assault of a

woman whom police found bleeding and with the crotch area of her

pants torn. His 1978 conviction for rape involved him breaking

into the victim's apartment. His 1994 conviction for criminal

sexual contact resulted from him kicking in the victim's front

2 A-0759-17T5 door. His 1997 conviction for assault arose out of him ordering

the victim to remove her clothes at knifepoint.

He was committed to the STU under the SVPA in 2001, following

his incarceration for the 1997 conviction. In 2003, he was

conditionally discharged but later returned to the STU due to a

violation of the discharge conditions. In 2010, he was

conditionally discharged again, but he absconded in 2012, and

returned to the STU on the violation in 2014. At the September

27, 2017 civil commitment review hearing before Judge James F.

Mulvihill that is the subject of this appeal, the State presented

expert testimony from Dr. Marta Pek Scott and Dr. Paul Dudek to

support E.D.'s continued commitment. In opposition, E.D.

testified on his own behalf and explained the circumstances that

led to his conditional discharge violations.

Dr. Scott, a psychiatrist, conducted a forensic psychiatric

evaluation of E.D and submitted a report that was admitted into

evidence at the hearing. After interviewing E.D. in August 2017

and reviewing his previous psychiatric evaluations, STU treatment

records, prison and police records, she concluded that E.D. met

the criteria of a sexually violent predator. Dr. Scott diagnosed

E.D. with antisocial personality disorder and polysubstance use

disorder. According to Dr. Scott, these disorders do not

3 A-0759-17T5 spontaneously remit, and their emotional, cognitive, and

volitional effects make E.D. predisposed to commit acts of sexual

violence. Dr. Scott also diagnosed E.D. with "borderline

intellectual functioning" but acknowledged that it did not appear

"he would suffer adaptive limitations."

Because of insufficient evidence, Dr. Scott did not diagnose

E.D. with a paraphilic disorder. She believed E.D. committed his

offenses "in the context of his personality

disorder . . . combined with . . . substance use" because E.D.

told her "he was intoxicated during all the offenses." Although

E.D. denied "having a deviant arousal" or "deviant fantasies," Dr.

Scott opined that, given his diagnosis, he did not exhibit enough

understanding of important sex offender concepts to mitigate his

risk for sexual re-offense.

According to Dr. Scott, while E.D.'s most recent progress

notes indicated "that he [had] significantly improved upon the

quality of his treatment participation and motivation, and

processed several issues . . . related to his dynamic factors[,]

[o]n the other hand, . . . he still [had] negative core beliefs

about women" and "continue[d] to believe that the conditions of

his discharge" were unfair. E.D. also consistently denied that

any of his sexual offenses were non-consensual.

4 A-0759-17T5 Dr. Scott testified E.D. "still [had] work to

do . . . developing his sexual assault cycle and . . . appropriate

relapse prevention plan." According to Dr. Scott, E.D. had "no

relapse prevention plan . . . despite the number of years he [had]

spent at the STU," and his argument that he did not commit "any

sex crime[s] during the time he . . . spent in the

community . . . [did] not constitute a relapse prevention plan by

any means."

Dr. Scott stated that at age sixty, E.D.'s Static-99R1 score

was five, which indicated an above average risk for re-offending.

In addition to the actuarial measure, Dr. Scott considered various

dynamic risk factors "that are not represented in the Static-99R,"

such as "early onset of sexual offending, substance abuse history,

antisocial personality structure, re-offending after previous

consequences, poor cognitive problem solving skills, cognitive

1 "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." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). 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)).

5 A-0759-17T5 distortions, and . . . inability to comply with treatment and

supervision."

Dr. Scott also considered various mitigating factors such as

"advanced age, serious illness, and skills obtained in treatment."

However, she determined that none of these factors "provide[d]

sufficient risk mitigation" in E.D.'s case and opined that he was

currently "highly likely" to re-offend if released into the

community. Furthermore, E.D.'s inability to comply with the

conditions of his discharge in the past "indicate[d] that he [was]

not ready for community life yet," and was unlikely to abide by

conditions if discharged a third time within the next twelve

months.

Dr. Paul Dudek, a psychologist and member of the STU's

Treatment Progress Review Committee (TPRC), conducted an annual

review of E.D.'s progress by interviewing E.D. and analyzing the

prior TPRC reports and prior treatment team reports. He also

submitted a report that was admitted into evidence. Dr. Dudek

concluded that E.D. "would be highly likely to re-offend sexually,"

and had not experienced sufficient treatment effect to mitigate

that risk.

Dr. Dudek generally agreed with Dr. Scott's diagnosis but

added a diagnosis of "other specified paraphilic disorder,

6 A-0759-17T5 specifically non-consent, with antisocial personality disorder,"

polysubstance use disorder, and "borderline intellectual

functioning." Dr. Dudek attributed his diagnosis to "a strong

component of that drive to act out on the urges and the fantasies

related to non-consent," despite E.D.'s denial of "any sort of

urges or a pattern of arousal to the kind of offenses . . . he's

been involved in." Dr. Dudek explained that deviant arousal is a

significant risk factor that treatment can control but cannot

eliminate.

According to Dr. Dudek, after E.D. returned to the STU, he

began his treatment trajectory poorly by focusing on the conditions

of his discharge, which he believed were unfair. However, "during

the course of his treatment," he became "more oriented towards

recognizing his . . . poor problem solving, and the impulsivity

and decision making" that "led to his return to the STU."

Nonetheless, while E.D. was "becoming more engaged in the

treatment, his understanding of the actual sex offense related

factors" as well as "his own relapse prevention planning" were

"relatively poor" and "hampered by his denial of the offenses."

Given E.D.'s current treatment trajectory, Dr. Dudek stated it was

"unlikely that he would comply with any sort of conditions of

discharge."

7 A-0759-17T5 Dr. Dudek also gave E.D. a score of five on the Static-99R,

but found several dynamic risk factors, including relationship

instability, "poor cognitive problem solving," a "history of

impulsivity," "hostility toward women," "general social

rejection," noncompliance with supervision, and "deviant arousal

patterns." Although treatment exposure and advanced age could be

mitigating factors, Dr. Dudek concluded that, in E.D.'s case,

treatment had "not been sufficient . . . to reduce [his] risk,"

and there was "no indication" that his advanced age has had a

beneficial effect.

In an oral opinion rendered immediately after the hearing,

Judge Mulvihill found "by clear and convincing evidence" that E.D.

had "been convicted of a sexually violent offense"; "suffer[ed]

from antisocial personality disorder and paraphilia otherwise

specified which affect him emotionally, cognitively, [and]

volitionally"; had "serious difficulty controlling his sexually

violent behavior"; and was "highly likely to sexually re-offend"

if released. The judge found both experts credible and made

findings consistent with their testimony and reports. He agreed

with their diagnosis of antisocial personality disorder and

polysubstance dependence but disagreed with Dr. Scott's opinion

8 A-0759-17T5 that there was "no paraphilia" and no "deviant arousal." In that

regard, he credited Dr. Dudek's contrary opinion.

Judge Mulvihill also recounted E.D.'s "extensive" juvenile

and criminal history but acknowledged that, while E.D.'s sexual

offenses were "very serious," they were twenty-five years old.

Further, the judge referenced E.D.'s extensive "substance abuse

history," which began with alcohol at age fourteen and cocaine and

marijuana at age seventeen. Additionally, Judge Mulvihill

acknowledged that E.D. was making "some progress in treatment

recently" but noted that he continued to deny the sexual offenses

and that, given his two prior failed attempts, he could not

demonstrate that he was "highly likely to adhere" to the conditions

of a conditional discharge if released now. Judge Mulvihill

entered the order continuing E.D.'s commitment, and this appeal

followed.

On appeal, E.D. concedes he committed a "sexually violent

offense" and is therefore subject to the SVPA, but argues Judge

Mulvihill gave insufficient weight to the factors indicating he

did not pose a risk and was not likely to reoffend sexually. In

particular, E.D. pointed out that he did not sexually reoffend

when he absconded from conditional discharge between 2010 and

2014. In addition, he notes he has made progress in treatment and

9 A-0759-17T5 has a reduced Static 99-R score because of his advanced age.2 We

reject these arguments and affirm.

"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)

(citing 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,'" which,

in E.D.'s case, is undisputed. 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).

2 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-0759-17T5 "[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 "to support involuntary commitment of a sex

offender under the Act . . . applies for [an individual] who has

been given a conditional discharge and is alleged to have violated

it." E.D., 183 N.J. at 551. 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." Ibid.

(quoting 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

(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).

11 A-0759-17T5 We find no clear mistake on this record. We are satisfied

that the record amply supports Judge Mulvihill's finding that E.D.

suffers from antisocial personality disorder and other specified

paraphilic 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 E.D.'s disorders,

polysubstance dependence, 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 Commitment of J.P., 339 N.J.

Super. 443, 459 (2001), was proper.

Affirmed.

12 A-0759-17T5