IN THE MATTER OF THE CIVIL COMMITMENT OF M.H. (SVP-354-04, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 19, 2021
• Docket: A-0683-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0683-19

IN THE MATTER OF THE CIVIL COMMITMENT OF M.H., SVP-354-04. _______________________

Submitted December 15, 2020 – Decided February 19, 2021

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-354-04.

Joseph E. Krakora, Public Defender, attorney for appellant (Patrick Madden, Assistant Deputy Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

M.E.H. appeals from an order, entered after a review hearing at which the

judge heard testimony from three expert witnesses, continuing his involuntary

civil commitment to the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

We disagree with M.E.H.'s argument that the judge "erred in crediting the Sta te

with having . . . met the criteria for commitment as a [s]exually [v]iolent

[p]redator" by proving that a "combination" of evidence regarding M.E.H.'s

"diagnosis and risk assessment, as well as its perspective [of] the facts"

established that he was "highly likely to commit a sexually violent offense in

the foreseeable future," and affirm.

Judges are authorized to continue an involuntary commitment under the

SVPA if the State proves 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 [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."

[In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).]

See also N.J.S.A. 30:4-27.26. The State has the burden of proving the committee

poses "a threat to the health and safety of others because of the likelihood of his

or her engaging in sexually violent acts." W.Z., 173 N.J. at 132. "[T]he State

A-0683-19 2 must prove that threat by demonstrating that the individual has serious difficulty

in controlling sexually harmful behavior such that it is highly likely that he or

she will not control his or her sexually violent behavior and will reoffend." Ibid.

As the judge observed in her oral decision, M.E.H. did not contest that the

State satisfied the first prong of the SVPA requirements under N.J.S.A. 30:4-

27.26. Evidence of M.E.H.'s convictions for sexually violent crimes was

documented in our prior opinions on appeal from orders initially committing

him in 2004, In re Civil Commitment of M.E.H., No. A-5923-05 (App. Div. Feb.

27, 2008), and continuing his commitment, In re Civil Commitment of M.E.H.,

No. A-5871-10 (App. Div. Feb. 11, 2014); In re Civil Commitment of M.E.H.,

No. A-2371-15 (App. Div. June 28, 2018).

In 1997, M.E.H. pleaded guilty to second-degree sexual assault for twice

sodomizing a woman to whom he offered a ride after her vehicle became

disabled. M.E.H., slip op. at 2 (App. Div. June 28, 2018). In 1990, facing

allegations that he restrained and vaginally penetrated his former fiancée, he

pleaded guilty to fourth-degree criminal sexual contact admitting that he

A-0683-19 3 forcibly touched the victim's breasts, vagina and buttocks. M.E.H., slip op. at 2

(App. Div. Feb. 27, 2008).1

The judge also noted in her oral decision that M.E.H.'s diagnosis offered

by Dr. Christopher P. Lorah, M.E.H.'s expert in psychology, was conceded by

M.E.H.'s counsel to satisfy the second prong under N.J.S.A. 30:4-27.26; and

those offered by Roger Harris, M.D. and Dr. Jamie R. Canataro, the State's

expert witnesses in psychiatry and psychology, respectively, although

conflicting with that of Dr. Lorah, met that prong.

Thus, as the judge determined, the only disputed issue related to the third

prong. The SVPA defines "mental abnormality" as "a mental condition that

affects a person's emotional, cognitive or volitional capacity in a manner that

predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26.

1 We also previously delineated the sexual offenses with which M.E.H. was charged but not convicted. First-degree aggravated sexual assault charges of a victim he claimed was a prostitute were dismissed as part of the 1997 plea agreement. Following his arrest in 1985 for two counts of rape of a child, and five counts of indecent assault and battery on a child where the victims were a nine-year-old and a twelve-year-old, all charges involving both children were dismissed although he admitted to police that when he penetrated the twelve- year old, the child screamed. He was also arrested for a 1982 attempted sexual assault; he pleaded guilty to a downgraded charge of simple assault. M.E.H., slip op. at 4-5 (App. Div. Feb. 27, 2008). A-0683-19 4 A committee's proven impaired ability to control sexually dangerous behavior

will suffice to prove a mental abnormality. See W.Z., 173 N.J. at 129.

M.E.H. argues the judge "failed to give proper weight to [his] lack of

problematic behavior" and his recent efforts in treatment, accepting "treatment

modules that were offered to him." The judge, however, credited the opinions

expressed by Drs. Harris and Canataro that, although he was capable of

understanding and applying treatment concepts, M.E.H. did not progress in his

treatment. The judge chose to reject M.E.H.'s contention that he was capable of

self-regulating his behavior. The judge found the evidence belied that assertion.

She credited Dr. Harris's testimony that M.E.H.'s "difficulties in group"

therapy were not personality conflicts but stemmed from his "impulsivity; poor

problem solving" and poor self-regulation that results in his externalization of

blame. She, likewise, accepted Dr. Canataro's testimony that M.E.H's

difficulties in group therapy—exhibiting "callousness and angry outbursts"—

came "back to core treatment issues of the . . . interpersonal conflicts that he has

with others and attachment issues." From Dr. Harris's report the judge also

found that M.E.H.'s behavior during his examination—failing to wait for a

question to be finished, misinterpreting the question and becoming, at times,

A-0683-19 5 "condescending and contemptuous"—also evidenced his inability to self-

regulate.

Dr. Canataro's testimony that M.E.H.'s risk level was impacted by "his

inability to manage his intense emotional expressions as seen in his offending

behaviors . . . [that] seep[] out in his daily interactions" at the STU supported

the judge's conclusion that M.E.H.'s inability "to manage his intense emotional

expressions is a treatment issue for him." The judge agreed with Dr. Canataro

that M.E.H. had not had enough treatment to adequately address his impulses,

and that "there [was] no mitigation of risk at [that] point." The judge found

M.E.H.'s desire to focus on relapse prevention, choosing to discount Dr.

Canataro's attempt to equally focus on interpersonal relationships, evidenced

that he "wants to do what he wants to do regardless of what the experts, as in

the treatment team, advise." And the judge agreed with Dr. Harris's opinion that

M.E.H. "would have a hard time negotiating the level of being held accountable

for his actions" without "ongoing treatment . . . to understand and better regulate

himself at this point." Finding that Dr. Harris had "a thorough understanding of

M.[E.]H." and that the doctor's "thought[-]out opinions were believable," the

judge accepted Dr. Harris's opinion "that M.[E.]H. ha[d] not sufficiently

progresse[d] in treatment to . . . acquire the skills the STU is offering so that he

A-0683-19 6 can better manage his sexual drive; better manage his interpersonal functioning;

. . . better manage his problem solving; . . . better manage his overall self -

regulation."

The judge's finding of M.E.H.'s inability to self-regulate is buttressed by

his admission that, despite a prohibition on viewing pornography at the STU, he

was "watching porn twice a month," "taking risks in order to satisfy his sexual

urges." The judge also found Dr. Lorah's credibility was "lost" because he did

not address this issue.

M.E.H. also asserts the judge "improperly dismissed Dr. Lorah's

testimony as to the importan[ce] of denial in determining progress in

treatment[,]" pointing to "documentation in [Dr. Lorah's] report as to studies

showing the limited impact denial had in terms of risk to [reoffend]." The judge

considered Dr. Lorah's view that denial and minimization by offenders can serve

as a "protective factor for them," unrelated to the risk of "recidivism" and found

Dr. Lorah's assertions "unconvincing."

Instead, the judge accepted Dr. Harris's opinion that M.E.H.'s

"inconsistent detailing" of his acts impacts his risk level in that M.E.H.'s

"difficulty identifying a coherent sex offense cycle does not build a proper safety

valve which would protect society, future victims, as well as himself from

A-0683-19 7 engaging in sexual offense behaviors again." The judge determined that if

M.E.H. deviated from the facts he admitted in pleading guilty to the predicate

crimes, it went "to the cognitive distortions . . . of the sexual offenses." The

judge recounted that Dr. Canataro referred to M.E.H.'s continued degradation

and blame of his victims to be "cognitive distortions that continue to seep out."

The judge found it significant from Dr. Canataro's testimony that, despite "years

of treatment and feedback about his versions of the offenses[,] he is still unable

to change . . . the distortions of thinking patterns," illustrating "his ability to

distort his offending behaviors and . . . [his continued] views of women."

The judge found the evidence better supported the view that M.E.H.

presented a risk of re-offense, rather than Dr. Lorah's initial assertion that

M.E.H. could bypass therapy at a therapeutic community and be conditionally

discharged. Indeed, the judge accepted Dr. Canataro's testimony that M.E.H.'s

placement in a therapeutic community would, at that juncture, be premature

because of his lack of emotional regulation and his impulsivity. She also found

more persuasive the State's expert's analysis of the actuarial risk assessment

tools than Dr. Lorah's assessment. And the judge found Dr. Lorah "los[t]

credibility in not finding a paraphilic disorder present in M.[E.]H.," as did Dr.

Harris.

A-0683-19 8 As the fact-finder in a bench trial, "the weight to be given to the evidence

of experts is within the competence of the [judge]," and it is within the judge's

discretion to accept or reject conflicting expert opinion after carefully

considering the evidence before the court. LaBracio Fam. P'ship v. 1239

Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). We owe our

deference, not only to the judge's decision that the State's experts were more

persuasive than M.E.H.'s expert, but also to her determination that they were

more credible. See In re J.W.D., 149 N.J. 108, 117 (1997). The judge parsed

the experts' testimony, considering the bases for their opinions.

As to the judge's extension of M.E.H.'s commitment, in our narrow

review, In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div.

2009), "[w]e must give the 'utmost deference' to the . . . judge's determination

of the appropriate balancing of societal interest and individual liberty ," ibid.

(quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)).

We recognize "committing judges under the SVPA are specialists in the area,

and we must give their expertise in the subject special deference." In re Civil

Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007).

"The appropriate inquiry is to canvass the . . . expert testimony in the

record and determine whether the [judge's] findings were clearly erroneous." In

A-0683-19 9 re D.C., 146 N.J. 31, 58-59 (1996). We will modify the judge's determination

to continue commitment "only where the record reveals a clear abuse of

discretion." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 90 (App.

Div. 2007).

The judge's findings are amply supported by the record and her

determination that the State met its burden of proof by clear and convincing

evidence was not at all erroneous, much less clearly erroneous. We discern no

abuse of discretion in the judge's ruling. Our determination in 2008 is still

applicable today: "There is no doubt that M.E.H. 'has serious difficulty

controlling his . . . harmful sexual behavior such that it is highly likely that [he]

will not control his . . . sexually violent behavior and will reoffend.'" M.E.H.,

slip op. at 10 (App. Div. Feb. 27, 2008) (alterations in original) (quoting W.Z.,

173 N.J. at 133-34).

Affirmed.

A-0683-19 10