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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2097-16T5
IN THE MATTER OF THE CIVIL COMMITMENT OF M.W., SVP-748-16. ________________________
Submitted May 15, 2018 – Decided July 20, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 748-16.
Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Alison Perrone, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).
PER CURIAM
M.W., twenty-seven years old, appeals from a judgment that
committed him to the Special Treatment Unit (STU), a secure
facility for the treatment of persons in need of involuntary civil
commitment pursuant to the Sexually Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. He contends the State failed to prove by clear and convincing evidence that he suffers from a
mental abnormality or personality disorder, which makes him highly
likely to re-offend in the reasonably foreseeable future.
Considering this contention in light of the record and applicable
standards, we affirm.
An involuntary commitment can follow service of a sentence,
or other criminal disposition, when the offender "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." N.J.S.A. 30:4-
27.26; see also N.J.S.A. 30:4-27.25. To civilly commit an
individual, the State must prove by clear and convincing evidence:
(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 not control his or her sexually violent behavior and will reoffend[.]
[In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).]
The first two elements derive directly from the statute. In
order to "comport with substantive due process concerns, [the]
Court interpreted the third statutory element as requiring the
State to show that a person is 'highly likely,' not just 'likely,'
2 A-2097-16T5 to sexually reoffend." Ibid. (quoting In re Commitment of W.Z.,
173 N.J. 109, 130 (2002)).
To be considered a sexually violent predator, an individual
must have committed a sexually violent offense. N.J.S.A. 30:4-
27.26. Sexual assault is considered a sexually violent offense.
Ibid. With this legal framework in mind, we will now consider the
facts that led to M.W.'s commitment under the SVPA.
M.W.'s first sexual offense arose when he was thirteen years
old and charged with criminal sexual contact for grabbing the
breast of a female peer. He was found delinquent of the downgraded
offense of harassment/sexual touching and was placed on one-year
probation. When he was twenty-one years old, he was adjudicated
delinquent on two counts of aggravated sexual assault: (1) anally
penetrating a six-year-old boy with his penis, and forcing the boy
to perform fellatio on him; and (2) forcing a four-year-old girl
to perform fellatio on him, and anally penetrating her with his
penis and digitally. A charge of aggravated sexual assault for
rubbing his penis against the buttocks of a four-year-old boy was
dismissed.1 He was given consecutive four-year sentences that
1 The dismissed charge and the adjudication were for acts that occurred when M.W. was fifteen years old and sixteen years old, respectively.
3 A-2097-16T5 were suspended upon the condition of completing a residential
placement program and six years of probation.
Due to his failure to report and an extreme lack of
cooperation with treatment, M.W.'s probation was revoked and he
was sent to New Jersey Training School for Boys (Training School)
to serve his consecutive four-year sentences. While incarcerated
and twenty-two years old at the time, he pled guilty to two counts
of criminal sexual contact for exposing his penis to a fourteen-
year-old boy and forcing the boy to touch his penis, and for also
grabbing the boy's penis.2 M.W. was sentenced to consecutive
eighteen-month prison terms.
The State subsequently filed a petition for involuntary civil
commitment under the SPVA. Judge Phillip M. Freedman conducted a
two-day commitment hearing at which a psychiatric expert, Alberto
Goldwaser, M.D., and a psychological expert, Zachary Yeoman,
Psy.D., testified for the State, and a psychological expert,
Timothy P. Foley, Ph.D., testified on behalf of M.W. All experts
testified concerning their evaluation of M.W., and their review
of his criminal history and other past evaluation assessments of
M.W.
2 The separate incidents occurred on consecutive days.
4 A-2097-16T5 According to Goldwaser, M.W.'s sex offense history with
children – despite admitting to having frequent consensual sex
with peer-aged partners – revealed impulsive offending behavior,
which increases his risk for future sex offenses.3 Goldwaser
discovered M.W. had lived in a revolving door of foster homes
during his youth and that his brother sexually abused him. He
believed M.W.'s documented history of violence and arson evidenced
his impulsivity and unwillingness to control his behavior. He
noted M.W.'s juvenile treatment showed little progress in meeting
progress goals. Goldwaser testified M.W. scored an eight on the
STATIC-99R4 actuarial instrument, but conceded even though others
have considered his score a seven, both scores are within the high
range to reoffend. Goldwaser found no evidence of attention
deficit/hyperactivity disorder or bipolar disorder as did prior
evaluators. Instead, based upon M.W.'s conduct and his admission
to a prior evaluator that he was attracted to young boys, Goldwaser
3 M.W. terminated his initial interview with Goldwaser but fully participated in a second interview. 4 The STATIC-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See 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." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).
5 A-2097-16T5 rendered a diagnosis of pedophilic disorder, male and female
nonexclusive, which caused him to feel that it was acceptable to
act on impulses to engage in sexual behavior with children. He
also diagnosed M.W. with antisocial personality disorder (ASPD),
which increases his risk for sexual offenses because it decreases
his ability to control his behavior.
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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-2097-16T5
IN THE MATTER OF THE CIVIL COMMITMENT OF M.W., SVP-748-16. ________________________
Submitted May 15, 2018 – Decided July 20, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP- 748-16.
Joseph E. Krakora, Public Defender, attorney for appellant M.W. (Alison Perrone, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Victoria R. Ply, Deputy Attorney General, on the brief).
PER CURIAM
M.W., twenty-seven years old, appeals from a judgment that
committed him to the Special Treatment Unit (STU), a secure
facility for the treatment of persons in need of involuntary civil
commitment pursuant to the Sexually Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. He contends the State failed to prove by clear and convincing evidence that he suffers from a
mental abnormality or personality disorder, which makes him highly
likely to re-offend in the reasonably foreseeable future.
Considering this contention in light of the record and applicable
standards, we affirm.
An involuntary commitment can follow service of a sentence,
or other criminal disposition, when the offender "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." N.J.S.A. 30:4-
27.26; see also N.J.S.A. 30:4-27.25. To civilly commit an
individual, the State must prove by clear and convincing evidence:
(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 not control his or her sexually violent behavior and will reoffend[.]
[In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).]
The first two elements derive directly from the statute. In
order to "comport with substantive due process concerns, [the]
Court interpreted the third statutory element as requiring the
State to show that a person is 'highly likely,' not just 'likely,'
2 A-2097-16T5 to sexually reoffend." Ibid. (quoting In re Commitment of W.Z.,
173 N.J. 109, 130 (2002)).
To be considered a sexually violent predator, an individual
must have committed a sexually violent offense. N.J.S.A. 30:4-
27.26. Sexual assault is considered a sexually violent offense.
Ibid. With this legal framework in mind, we will now consider the
facts that led to M.W.'s commitment under the SVPA.
M.W.'s first sexual offense arose when he was thirteen years
old and charged with criminal sexual contact for grabbing the
breast of a female peer. He was found delinquent of the downgraded
offense of harassment/sexual touching and was placed on one-year
probation. When he was twenty-one years old, he was adjudicated
delinquent on two counts of aggravated sexual assault: (1) anally
penetrating a six-year-old boy with his penis, and forcing the boy
to perform fellatio on him; and (2) forcing a four-year-old girl
to perform fellatio on him, and anally penetrating her with his
penis and digitally. A charge of aggravated sexual assault for
rubbing his penis against the buttocks of a four-year-old boy was
dismissed.1 He was given consecutive four-year sentences that
1 The dismissed charge and the adjudication were for acts that occurred when M.W. was fifteen years old and sixteen years old, respectively.
3 A-2097-16T5 were suspended upon the condition of completing a residential
placement program and six years of probation.
Due to his failure to report and an extreme lack of
cooperation with treatment, M.W.'s probation was revoked and he
was sent to New Jersey Training School for Boys (Training School)
to serve his consecutive four-year sentences. While incarcerated
and twenty-two years old at the time, he pled guilty to two counts
of criminal sexual contact for exposing his penis to a fourteen-
year-old boy and forcing the boy to touch his penis, and for also
grabbing the boy's penis.2 M.W. was sentenced to consecutive
eighteen-month prison terms.
The State subsequently filed a petition for involuntary civil
commitment under the SPVA. Judge Phillip M. Freedman conducted a
two-day commitment hearing at which a psychiatric expert, Alberto
Goldwaser, M.D., and a psychological expert, Zachary Yeoman,
Psy.D., testified for the State, and a psychological expert,
Timothy P. Foley, Ph.D., testified on behalf of M.W. All experts
testified concerning their evaluation of M.W., and their review
of his criminal history and other past evaluation assessments of
M.W.
2 The separate incidents occurred on consecutive days.
4 A-2097-16T5 According to Goldwaser, M.W.'s sex offense history with
children – despite admitting to having frequent consensual sex
with peer-aged partners – revealed impulsive offending behavior,
which increases his risk for future sex offenses.3 Goldwaser
discovered M.W. had lived in a revolving door of foster homes
during his youth and that his brother sexually abused him. He
believed M.W.'s documented history of violence and arson evidenced
his impulsivity and unwillingness to control his behavior. He
noted M.W.'s juvenile treatment showed little progress in meeting
progress goals. Goldwaser testified M.W. scored an eight on the
STATIC-99R4 actuarial instrument, but conceded even though others
have considered his score a seven, both scores are within the high
range to reoffend. Goldwaser found no evidence of attention
deficit/hyperactivity disorder or bipolar disorder as did prior
evaluators. Instead, based upon M.W.'s conduct and his admission
to a prior evaluator that he was attracted to young boys, Goldwaser
3 M.W. terminated his initial interview with Goldwaser but fully participated in a second interview. 4 The STATIC-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See 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." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).
5 A-2097-16T5 rendered a diagnosis of pedophilic disorder, male and female
nonexclusive, which caused him to feel that it was acceptable to
act on impulses to engage in sexual behavior with children. He
also diagnosed M.W. with antisocial personality disorder (ASPD),
which increases his risk for sexual offenses because it decreases
his ability to control his behavior. Noting M.W.'s history of
violating probation conditions following his initial delinquency
adjudication, coupled with his lack of appreciation of the benefits
of treatment, Goldwaser opined that unless he is committed to the
STU, he is highly likely to sexually reoffend.
Yeoman's testimony – although stating his diagnosis was
reached independent of the other experts – mirrored Goldwaser's
assessments. M.W. told Yeoman that he could not explain why he
committed his sexual offenses. Yeoman noted that M.W.'s antisocial
behavior was demonstrated by his inability to follow rules and
committing acts of violence and arson. Yeoman indicated that M.W.
had a non-compliant attitude towards treatment. Yeoman diagnosed
M.W. with pedophilic disorder and ASPD, the combination of which
predisposed him to sexually violent behavior and affected his
ability to control the behavior. He also noted the discrepancy
of M.W.'s STATIC-99R score of seven or eight, but found that both
scores indicated a high risk to reoffend. Yeoman believed that
6 A-2097-16T5 the pedophilic disorder was evident in M.W.'s youth and continued
into his adulthood.
Foley disagreed with the State's experts. He opined that
M.W. did not have ASPD – because he never lived in the community
as an adult – nor pedophilic disorder – because it was only evident
in his youth but not currently in is his adulthood. Since these
disorders did not exist, Foley stated the STATIC-99R should not
be considered in assessing M.W.'s likelihood to reoffend. He also
saw no evidence of bipolar disorder. He claimed that the criminal
sexual contact committed in the Training School was not
substantial.
Judge Freedman found the testimony of the State's experts to
be more credible than M.W.'s expert. He found the Training School
offense, committed when M.W. was twenty-two years old, was a clear
indication that his deviant sexual behavior was not restricted to
his youth. The judge found the credible evidence demonstrated
M.W. suffers from the mental abnormality of pedophilic disorder
and the personality disorder of ASP; in turn affecting him
emotionally, cognitively, and volitionally, and predisposing him
to sexual violence, and making him highly likely to reoffend if
not confined in a secure facility. He determined M.W.'s "history,
his unfortunate upbringing . . . undoubtedly contributed
substantially to his conduct and problems . . . [and based on]
7 A-2097-16T5 his whole record, I don't think there's any question [he] is a
dangerous person." Consequently, Judge Freedman found that M.W.
was in need of civil commitment, and not a good candidate for a
conditional discharge because the "likelihood of him complying
with the conditions is very low."
In considering this appeal, our "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. (citation
omitted). "The final decision whether a person previously
convicted of a sexually violent offense is highly likely to
sexually reoffend lies with the courts, not the expertise of
psychiatrists and psychologists. Courts must balance society's
interest in protection from harmful conduct against the
individual's interest in personal liberty and autonomy." Ibid.
(citations omitted). "A trial judge is 'not required to accept
all or any part of [an] expert opinion[].' The ultimate
determination is 'a legal one, not a medical one, even though it
is guided by medical expert testimony.'" Ibid. (alterations in
original) (quoting D.C., 146 N.J. at 59, 61). Therefore, we should
not modify the judge's determination "unless 'the record reveals
a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J. at 58).
8 A-2097-16T5 "So long as the trial [judge's] findings are supported by
'sufficient credible evidence present in the record,' those
findings should not be disturbed." Ibid. (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)).
Governed by these standards, we discern no basis to disturb
Judge Freedman's decision. The credible record – documentary
evidence and testimony of Goldwaser and Yeoman – amply support a
finding that M.W. is a sexually violent predator suffering from
pedophilic disorder and ASPD, and he is highly likely to engage
in acts of sexual violence if not confined in a secure facility
for control, care and treatment under the SVPA.
Affirmed.
9 A-2097-16T5