IN THE MATTER OF THE CIVIL COMMITMENT OF H.E., SVP-518-08 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 7, 2018
• Docket: A-4826-16T5
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4826-16T5

IN THE MATTER OF THE CIVIL COMMITMENT OF H.E., SVP-518-08. ________________________________

Argued March 22, 2018 – Decided June 7, 2018

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 518-08.

Joan Van Pelt, Designated Counsel, argued the cause for appellant H.E. (Joseph E. Krakora, Public Defender, attorney).

Cindi Collins, Assistant Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney).

PER CURIAM

H.E. appeals from the June 14, 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.

We need not recount H.E.'s prior criminal history or events

since his original admission to the STU in 2009. They are

recounted at length in our prior opinions, In re Civil Commitment

of H.E., No. A-5298-08 (App. Div. Feb. 8, 2012), In re Civil

Commitment of H.E., No. A-2826-13 (App. Div. Dec. 2, 2014), and

In re Civil Commitment of H.E., No. A-2412-15 (App. Div. June 8,

2016). Suffice it to say that H.E. has an extensive criminal

history consisting of non-sexual and sexual offenses. H.E.'s

predicate convictions arose out of his 1999 guilty pleas to

aggravated sexual assault upon a fifteen-year-old female

acquaintance and aggravated criminal sexual contact upon a twenty-

four-year-old stranger, for which he was sentenced to a twelve-

year custodial term, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2. He was committed to the STU under the SVPA after

serving his sentence, and his commitment has been continued

following periodic review hearings.

The most recent review, which is the subject of this appeal,

was conducted by Judge Philip M. Freedman on May 12 and 22, 2017.

At the hearing, the State relied on the expert testimony of

psychiatrist Roger Harris, M.D., and psychologist Nicole Paolillo,

Psy. D., a member of the STU's Treatment Progress Review Committee

2 A-4826-16T5 (TPRC), both of whom agreed on H.E.'s diagnosis and opined that

his risk to sexually reoffend remained high. H.E. relied on the

expert testimony of psychologist Gianni Pirelli, Ph. D., who agreed

with the diagnosis of the State's experts but disagreed that H.E.'s

risk to sexually reoffend was high. After interviewing H.E. and

reviewing previous psychiatric evaluations, STU treatment records,

and related documents, Harris and Pirelli prepared reports, which

were admitted into evidence. Although Paolillo did not author the

TPRC report, which was also admitted into evidence, she

participated in the review, which included interviewing H.E.

Various treatment notes and other records were also admitted into

evidence.

Dr. Harris concluded that H.E., born February 1, 1975, met

the criteria of a sexually violent predator and was "highly likely

to sexually reoffend if placed in a less restrictive setting"

because he has not mitigated his risk. Based on H.E.'s "pervasive

pattern for the disregard and the violation of others," his failure

"to conform to social norms" resulting in repeated arrests, his

"impulsive[ness,]" "irritability[,]" "aggressiveness[,]"

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

"rationalizing" and "indifference to hurting others[,]" Dr.

Harris diagnosed H.E. with antisocial personality disorder. Dr.

3 A-4826-16T5 Harris also gave H.E. a score of five on the Static-99R,1

indicating an above average risk to sexually reoffend. However,

Dr. Harris testified that "[t]his does not include dynamic or

psychological factors, and it doesn't include his sexualized

violence, his history of impulsivity, his childhood behavioral

problems and his antisocial attitudes and behaviors . . . ."

Dr. Harris also found evidence of "conduct disorder" with

onset before age fifteen based partly on H.E.'s adjudication of

delinquency for sexual assault in 1991 for "switching partners"

without consent. H.E. reported that the probationary disposition

he received for the offense did not deter him because "he was

selling drugs, stealing cars, running the streets, not taking

responsibility . . . ." According to Dr. Harris, "when you offend

as a juvenile, and also offend as an adult, . . . you have a

greater risk to sexually reoffend in the future . . . ." Dr.

Harris also found significance in the fact that the predicate

offenses were one month apart, that the second victim was a

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). 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)).

4 A-4826-16T5 stranger to H.E., and that there was an "escalation of violence

overall . . . ." According to Dr. Harris, these factors increased

H.E.'s risk of sexually reoffending and suggested that H.E. was

"having greater difficulty inhibiting and controlling his sexually

aggressive drive . . . ." In addition, because H.E. reported

having "consensual sexual partners during this time, . . . clearly

that was not sufficient for his sexual gratification."

Dr. Harris also diagnosed H.E. with alcohol and cannabis use

disorders, based on his history of alcohol use beginning at age

thirteen and marijuana use beginning at age sixteen. Dr. Harris

explained that "the use of alcohol or cannabis can lower one's

threshold to act impulsively, to lack control of one's aggression

and sexual drive, so it puts one at greater risk to reoffend."

Dr. Harris found H.E.'s intelligence to be within the average

or slightly lower than average range. However, Dr. Paolillo

testified that although testing "placed him in a borderline range

of intellectual functioning[,]" H.E. did not "present as a low

functioning individual based on his cognitive skills[,]" and she

saw no indication that he struggled with communicating or

understanding.

Dr. Harris described H.E. as an "active participant" in

treatment and Dr. Paolillo opined that H.E. "has received a

mitigating therapeutic experience" just by virtue of his exposure

5 A-4826-16T5 to treatment. Since 2012, H.E. has been in Phase 3A of treatment,

which Dr. Paolillo characterized as "the core phase of

treatment[,]" but he had been rejected by the more advanced

Therapeutic Community (T.C.) multiple times, reportedly because

he denied culpability of his predicate offenses. According to Dr.

Harris, while "denial of th[ese] kind[s] of aggressive sexual

offenses does not appear to predict risk in the future[,]" by

virtue of his denials, H.E. was "denying himself an opportunity

to flesh out both his sexual offense cycle . . . to establish

[relapse prevention] skills that address the nature of his

aggression towards women, his violence, [and] his strong sexual

drive."

In addition, Dr. Harris noted that H.E. was placed on MAP

this past year for having a USB in his possession and for

threatening a woman on the telephone, an accusation he denied.

H.E. was also placed in the T.C.C.2 when he was in a physical

altercation with another resident and claimed he was assaulted by

the resident although he had no "conflict with the individual."

Dr. Harris pointed out that these incidents evidenced a pattern

of H.E. "disowning" and not taking responsibility for his own

aggression, and "trying to essentially sanitize the record."

2 Dr. Harris and Dr. Paolillo explained that the T.C.C. is "basically an area for him to be isolated" for his protection.

6 A-4826-16T5 According to Dr. Harris, "[d]isowning the level of aggression that

he engages in is at odds with . . . how one mitigates risk to

sexually reoffend" and "has short circuited [H.E.'s] ability to

move forward in treatment . . . ."

Although Dr. Pirelli agreed that H.E.'s diagnoses were part

of his offending, and predisposed him to sexually reoffend at some

point in time, he opined that they have been "mitigated

significantly" and no longer impaired his volitional capacity to

control himself. According to Dr. Pirelli, while antisocial

personality disorder is not "curable[,]" H.E.'s "antisocial

personality disorder related risks have decreased" for "a variety

of reasons[,]" including H.E.'s age and environmental factors,

such as H.E. having a fiancé and adult children. To support his

opinion, Dr. Pirelli administered the Risk for Sexual Violence

Protocol (RSVP), "a structured professional judgment" measure,

which included "[twenty-two] empirically supported sexual violence

risk factors across five domains[,]" consisting of sexual violence

history, psychological adjustment, mental disorder, social

adjustment, and manageability.3

3 Dr. Harris disagreed with Dr. Pirelli's RSVP scoring of H.E. For example, according to Dr. Harris, Dr. Pirelli did not account for H.E.'s high score of twenty-six on the PCL-R or the psychopathy checklist revised, which provided a dimensional score that represented the extent to which an individual matched the

7 A-4826-16T5 Dr. Pirelli testified that although H.E. denied his predicate

offenses, his assessment of H.E. encompassed both offenses,

despite the fact that Dr. Pirelli questioned the reliability of

the second victim's identification of H.E. as her assailant and

Dr. Pirelli referred to the first conviction as the only

"compelling adult offense." To further support his opinion, Dr.

Pirelli pointed to H.E.'s most recent treatment plan, which

reported either moderate or good progress in six out of seven

areas. Dr. Pirelli concluded that H.E. was sufficiently in control

of his behavior to be discharged with an appropriate structured

discharge plan.

In an oral opinion rendered on June 14, 2017, Judge Freedman

found by clear and convincing evidence that H.E. "has, in fact,

committed sexually violent offenses which bring him within the

purview of the statute[;]" that he "suffer[s] from a personality

disorder, antisocial personality disorder, and an alcohol and drug

use disorder," that in tandem affect him emotionally, cognitively,

prototypical psychopath. The higher the score, the closer the match, and presumably the greater the confidence that the individual is a psychopath. An individual receiving a score of thirty or above met the diagnostic criteria for psychopathy. Dr. Harris believed that while H.E.'s score did not meet the diagnostic criteria for a psychopath, it indicated psychopathic traits consistent with his antisocial personality disorder diagnosis. Dr. Harris also disagreed with Dr. Pirelli's premise that there was no diversity or escalation in H.E.'s sexual offending history.

8 A-4826-16T5 and volitionally, and "clearly . . . predispose him to engage in

acts of sexual violence[;]" and that if "released he would have

serious difficulty controlling his sexually violent behavior and

would be highly likely in the reasonably foreseeable future to

engage in acts of sexual violence."

After articulating the applicable legal principles,

recounting the testimony of all three experts, and detailing H.E.'s

treatment record at the STU, the judge observed "[t]his case is

primarily one of treatment progress." The judge noted the experts'

agreement as to H.E.'s diagnosis, and pointed out that their

"disagreement really rest[ed] on their perception of treatment

progress." The judge acknowledged that H.E. has progressed but

credited the opinions of the State's experts that "[H.E.] has not

progressed far enough, and still remains highly likely [to sexually

reoffend.]" The judge explicitly rejected Dr. Pirelli's

assessment as to the extent of H.E.'s progression in treatment,

finding that "Dr. Pirelli [was] totally minimizing, along with

[H.E.], the nature of his offending in the . . . two predicate

cases . . . ."

As a result, the judge did not "credit [Dr. Pirelli's] view

that [H.E.] [was] ready to be discharged." Instead, the judge

credited the testimony of the State's experts that "[H.E.'s]

relapse prevention skills [were] not sufficient because there

9 A-4826-16T5 [was] insufficient information being put into his cycle, which

[was] the basis of his relapse prevention skills." The judge

agreed that H.E. has participated satisfactorily, his attitude has

changed, and he has improved the manner in which he conducts

himself at the institution. However, according to the judge, H.E.

has not dealt with the issues that are raised by his predicate

offenses and he was

going to have to come to grips with the dynamics of those two offenses which he totally, at this point, denies. He admits knowing one of the victims, but denies any sexual contact and totally denies the second offense. And Dr. Pirelli apparently agrees with him by looking at part of the evidence in the record.

Judge Freedman entered a memorializing order continuing H.E.'s

commitment and this appeal followed.

On appeal,4 H.E. argued Judge Freedman erred in concluding

that the State met its burden of proof. H.E. asserted that the

judge's reliance on his treatment progress was misplaced because,

unlike paraphilia that does not spontaneously remit, his

antisocial personality disorder diagnosis declines with age

regardless of treatment effect and H.E. is now in his forties and

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-4826-16T5 his predicate offenses occurred two decades ago. 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 . . . .'"

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

11 A-4826-16T5 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 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 find no clear mistake on this record. We are satisfied

that the record amply supports Judge Freedman's finding that H.E.

suffers from antisocial personality disorder and alcohol and drug

use disorders, a necessary predicate for continued commitment

under the SVPA. See e.g., In re Civil Commitment of D.Y., 218

12 A-4826-16T5 N.J. 359, 381 (2014). Based on credible expert testimony, the

judge determined that H.E.'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 (2001), was proper.

Affirmed.

13 A-4826-16T5