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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2703-17T5
IN THE MATTER OF THE CIVIL COMMITMENT OF S.M., SVP-308-03. _____________________________
Argued March 12, 2019 – Decided April 8, 2019
Before Judges Hoffman, Suter and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-308-03.
Susan R. Silver, Assistant Deputy Public Defender, argued the cause for appellant S.M. (Joseph E. Krakora, Public Defender, attorney; Susan R. Silver, of counsel and on the briefs).
Stephen J. Slocum, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen J. Slocum, on the brief).
PER CURIAM Appellant S.M., a sex offender who was civilly committed in 2003 to the
Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act
(SVPA), N.J.S.A. 30:4-27.24 to -27.38, appeals from a January 9, 2018 Law Division judgment continuing his commitment after a review hearing. We
affirm.
Appellant's lengthy history of sexual offenses was recounted in this court's
prior opinions upholding his commitment under the SVPA. 1 In 1986, appellant
sexually assaulted an adult female at knifepoint in upstate New York, resulting
in his conviction for attempted rape, assault and criminal possession of a
weapon. In 1988, appellant was charged with sexually assaulting a different
victim at knifepoint in Buffalo, New York, and entered into a plea agreement to
a lesser charge of attempted burglary. In 1993, he was charged with aggravated
sexual assault of another woman at knifepoint and pleaded guilty to a lesser
charge of possession of a weapon for an unlawful purpose.
In 1997, appellant pleaded guilty and was convicted of the predicate
offense of aggravated sexual assault, amended to sexual assault, of another
victim, N.J.S.A. 2C:14-2(a)(3), along with a drug possession count, N.J.S.A.
1 See In re Civil Commitment of S.B.M., No. A-6426-04 (App. Div. Apr. 16, 2007) (upholding appellant's initial commitment); In re Civil Commitment of S.B.M., No. A-2384-07 (App. Div. Sept. 3, 2008) (remanding the matter to a different judge for hearing); In re Civil Commitment of S.B.M., No. A-1703-08 (App. Div. June 22, 2009) (upholding appellant's continued commitment); In re Civil Commitment of S.M., No. A-2105-09 (App. Div. June 2, 2010) (same); In re Civil Commitment of S.M., No. A-2623-12 (App. Div. Jan. 24, 2014) (same); In re Civil Commitment of S.M., No. A-0027-15 (App. Div. Dec. 7, 2015) (same). A-2703-17T5 2 2C:35-10(a)(1). He was sentenced to a ten-year term at the Adult Diagnostic
and Treatment Center (ADTC). Appellant does not contest he has engaged in
sexual offenses rendering him eligible for civil commitment under the SVPA.
Substantial motion practice preceded the most recent annual review
hearing from which appellant now appeals. Appellant served respondent with a
notice in lieu of subpoena seeking discovery of all documents relating to the
creation of the Therapeutic Community at the STU.2 The trial court granted
respondent's motion to quash the subpoena, but ordered respondent to provide
appellant with any Therapeutic Community training materials or documents
concerning the Therapeutic Community given to STU residents. The trial court
found the majority of the documents sought were not relevant to the review
hearing. The trial court noted appellant could challenge the propriety of the
Therapeutic Community in a separate action.
2 In addition to numerous other documents, the notice in lieu of subpoena specifically requested production of the following: research that was considered on the effectiveness of Therapeutic Communities in treating sex offenders; internal memoranda about the establishment and governance of the Therapeutic Community at the STU; and internal correspondence among STU staff about the creation and maintenance of the Therapeutic Community.
A-2703-17T5 3 Thereafter, appellant served respondent with interrogatories and Dr.
Tarmeen Sahni 3 with a subpoena for oral testimony and production of the
following information and documents: (1) "[r]esearch on which you relied in
concluding Therapeutic Communities are effective therapeutic interventions for
sex offenders;" (2) "[r]esearch on which you relied in concluding that [appellant]
is highly likely to sexually reoffend if not confined to the [STU];" (3) "[r]esearch
on which you relied in concluding that [appellant] must attend the Therapeutic
Community at the STU in order to reduce his risk below the statutory threshold;"
(4) "[t]he raw data for any tests you conducted of [appellant] in assessing his
risk;" and (5) "[r]esearch on which you relied in determining what it means to
complete treatment."
Respondent advised appellant the discovery requests would not be
answered, contending the discovery sought was not authorized by the SVPA or
any court rule and the trial court denied appellant's prior request for many of
these same documents. Appellant moved to compel the requested discovery.
The trial court denied the motion, stating there is no right to depositions or
interrogatories in SVPA proceedings. The trial court noted Rule 4:74-7(d)
3 Dr. Sahni authored the most recent Treatment Progress Review Committee ("TPRC") report. She did not testify during the review hearing. A-2703-17T5 4 provides separate discovery requirements for civil commitment hearings. The
trial court also noted the same discovery issue was frequently raised during the
past sixteen years and rejected each time. We denied appellant's motion for
leave to appeal from the two discovery orders.
The trial court conducted a two-day review hearing in December 2017.
The State presented two expert witnesses at the review hearing: Dr. Dean M.
DeCrisce, a psychiatrist, and Dr. Nicole Paolillo, a psychologist who is a
member of the TPRC at the STU. Appellant presented the expert testimony of
a psychologist, Dr. Christopher P. Lorah. All of the mental health experts were
deemed qualified to offer their opinions, and their written reports were admitted
into evidence without objection. Appellant did not testify.
Dr. DeCrisce examined appellant and issued a report containing his
findings. He relied, in part, on information from prior evaluations, but formed
his own diagnostic impressions and opinions. Dr. DeCrisce diagnosed appellant
with Antisocial Personality Disorder and Other Specified Paraphilic Disorder
(Nonconsent). These dual diagnoses "contribute[] to the overall offense
dynamics of essentially an individual that takes what he wants when he wants it
whenever he wants it." Notably, appellant admitted in the past to arousal to fear
A-2703-17T5 5 of his victims, the desire to punish and humiliate a victim, and masturbating to
fantasies of rape. Appellant also exhibited impulsivity and poor judgment.
Dr. DeCrisce noted appellant was hostile and resistant in treatment and
did not gain mastery of any treatment concepts while incarcerated at the ADTC.
Early on during his commitment to the STU, appellant was hostile, verbally
assaultive towards peers, and uncooperative and was placed on treatment
probation in 2006 to 2007. He has, however, made progress over the years. In
2008, he was recommended for Phase III of treatment, appeared less hostile than
in the past, and had gained some understanding of his sexual dynamics. He
exhibited the same personality characteristics but slightly attenuated.
Beginning in 2011, appellant was recommended for placement in the
Therapeutic Community at the STU in "an attempt to try [to] address some of
[his] personality characteristics, which are considered dynamic factors that can
contribute to sexual reoffense." By 2016, appellant still refused to participate
in the Therapeutic Community despite being offered an accelerated six-month
review if he participated in it. Appellant did not attend any self-help groups
until 2017 and had not taken modules (didactic classes) for the past year.
The Therapeutic Community provides "a substantially higher and more
intensive treatment level than is available in the regular groups." Approximately
A-2703-17T5 6 seventy percent of the sexually violent predator programs in this country use
components of the Therapeutic Community. Dr. DeCrisce opined participating
in the Therapeutic Community would lower appellant's risk by "address[ing] his
continued antisocial orientation and some of the charact[e]rological
disturbances." He noted appellant did not appear to have "a substantial and
extensive ability to relate his triggers, potential interventions, problems,
shortcomings, and things of that nature."
Appellant admitted the coercive nature of the 1986 offense was sexually
arousing. Dr. DeCrisce reviewed appellant's offense history and "pattern of
offense behavior." He gave less weight to charges that did not result in
convictions. Dr. DeCrisce noted appellant also admits to the 1996 rape at
knifepoint and to being aroused by the fear he put in the victim. Appellant
admitted he was aroused to fear since he was a child. Dr. DeCrisce found
appellant's criminal history significant, stating appellant had committed:
at least two, if not three, admitted sexual offenses that are violent, using knives. He's admitted to arousal to fear. One of the offenses was to punish and humiliate a woman. He's had a history of consensual bondage play coercive behaviors in the past. And also has a severely violent and impulsive criminal history throughout his life.
A-2703-17T5 7 Dr. DeCrisce stated appellant's lifelong history of criminality was the
basis for his diagnosis of Antisocial Personality Disorder. He concluded
appellant had "a particularly severe version of antisociality" "that is difficult to
treat" as evidenced by his Psychopathy Checklist-Revised test (PCL-R) score of
30, "which suggests that he meets the construct for psychopathy." 4 Dr. DeCrisce
noted "people with higher PCL-R scores are more prone to violent behaviors."
While acknowledging appellant is "improving and doing well in
treatment," Dr. DeCrisce opined appellant remained a high risk to sexually
reoffend unless confined in a secured treatment facility because he had not yet
"achieved an adequate level of mitigation through treatment to adequately
[m]itigate his high risk . . . for substantial community harm." He noted several
actuarial instruments placed appellant at "a high risk of community sexual
harm." Dr. DeCrisce opined the treatment gains made by appellant thus far were
"not adequate to reduce that risk," but he may achieve "those gains if he goes to
the therapeutic community, and does reasonably well."
4 "The PCL-R test is a widely used method to measure psychopathic personality traits." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 206 (2001) (Baime, J., dissenting). A score of thirty is the cutoff for reliable classification as a psychopath. Ibid. A-2703-17T5 8 Dr. Paolillo, a member of the TPRC, was admitted as an expert in
psychology and the Therapeutic Community. She evaluated appellant as part of
his annual TPRC review and prepared the TPRC's report and an addendum to
the report, addressing appellant's "eligibility and need for exposure to the
[Therapeutic Community]." Like Dr. DeCrisce, Dr. Paolillo considered the
reports and diagnostic impressions of other evaluators, but formed her own
diagnoses and opinions. She too diagnosed appellant with severe Antisocial
Personality Disorder and Other Specified Paraphilic Disorder (Nonconsent),
which caused him to have serious difficulty in controlling his sexual offending
behavior and predisposed him to commit acts of sexual violence. She found
appellant had a high risk of sexually reoffending in the foreseeable future.
Dr. Paolillo reported actuarial instruments placed appellant in the "Well
Above Average Risk Level IVb" under the Static-99R and "high level of
dynamic needs" category under the Stable-2007.5 She noted appellant's scores
5 "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 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)). The Stable-2007 is an actuarial instrument used to assess dynamic risk factors that can change over time. Kevin Baldwin, Sex Offender Risk Assessment, Assessment and Planning Initiative 2-3 (July 2015), https://www.smart.gov/pdfs/SexOffenderRiskAssessment.pdf.
A-2703-17T5 9 on the PCL-R "suggest that he meets the clinical threshold for the construct of
psychopathy" and "has a high number of psychopathic traits which require
therapeutic attention and which may interfere with therapeutic progress." His
PCL-R score "results in the 'severe' qualifier" on his Antisocial Personality
Disorder diagnosis.
Dr. Paolillo noted appellant was in "the initial stage of the core phase of
treatment." The Therapeutic Community is "a more advanced subset" of the
core phase of treatment. She opined appellant requires "a more intense exposure
to treatment." While appellant can advance in treatment without participating
in the Therapeutic Community, his "progress will occur more slowly," as it had
"for so many years." 6
Dr. Lorah acknowledged appellant's offenses, including those he was not
convicted of, have clinical significance even when the individual denies
committing them. As did the State's experts, Dr. Lorah diagnosed appellant with
Antisocial Personality disorder and Other Specified Paraphilic Disorder
(Nonconsent). Dr. Lorah confirmed both of these conditions predispose
6 The Therapeutic Community is not mandatory. As noted by Dr. Paolillo in her addendum report: "Entry or exposure to the Therapeutic Community is not a preliminary requirement to attaining discharge candidacy . . . ." Committees are recommended for the Therapeutic Community on an individual basis. The y must then apply to participate in the Therapeutic Community. A-2703-17T5 10 appellant to sexually reoffend. He also agreed the combination of these
conditions is among the most robust predictors of reoffense.
Despite these findings, Dr. Lorah opined appellant had received "enough
in treatment at the STU to address the emotional, cognitive, and/or volitional
aspects of the statute and that he would be less than highly likely to commit a
sexual offense if released to the community under a conditional discharge." He
concluded appellant "has a firm understanding of his offense cycle, and . . . has
addressed cognitive distortions and justifications that supported his sex crimes."
He found appellant is "learning how to control his anger," and is "developing an
understanding of victim empathy." He also opined appellant is highly likely to
comply with a conditional discharge plan based on his behavior and compliance
with recommendations during the past seven years at the STU. Notably,
appellant's refusal to participate in the Therapeutic Community did not factor
into Dr. Lorah's opinion.
Based on appellant's treatment knowledge and impact, Dr. Lorah opined
appellant is "less than highly likely" to reoffend if released on a conditional
discharge. In reaching that conclusion, Dr. Lorah noted actuarial assessments
do not alone accurately predict risk of re-offense.
A-2703-17T5 11 The trial court issued a lengthy oral decision recounting appellant's
offense history and the voluminous record. It emphasized it was not relying on
hearsay to support its conclusions, but noted the State's witnesses were permitted
"to utilize and to rely upon TPRC reports, treatment notes, juvenile presentence
reports, [and] clinical certificates supporting the petition." The trial court found
the documents relied upon by the experts are the kind of documents relied upon
by experts in the field of performing risk assessments. The trial court also noted
reports by STU teams are business records admissible under N.J.R.E. 803(c)(6).
The trial court focused on treatment effect. It credited the State's experts'
shared conclusion that, although appellant had progressed, he still needs further
treatment progress to justify a conditional release. In that regard, appellant "still
needs to show the integration that he's made, the internalization that he's made
of what he's learned." The court further credited the State's experts' conclusions
that appellant exhibited a number of characteristics that militate against such a
finding. The court concluded appellant should participate in the Therapeutic
Community, finding the State's experts were in a much better position than Dr.
Lorah to evaluate appellant's need for the Therapeutic Community.
The trial court noted it was undisputed appellant suffered from Antisocial
Personality Disorder and Other Specified Paraphilic Disorder (Nonconsent) and
A-2703-17T5 12 has psychopathic traits. The trial court found the State proved by clear and
convincing evidence that: (1) appellant suffers from a mental abnormality and a
personality disorder, which predispose him to sexually reoffend; (2) if released,
appellant would have serious difficulty controlling his sexually violent behavior
within the reasonably foreseeable future; and (3) appellant is highly likely to
engage in acts of sexual violence if he were released at this time. The trial court
entered judgment continuing appellant's involuntary civil commitment to the
STU. This appeal followed.
Appellant raises the following issues on appeal: (1) the State did not meet
its burden of proof since its expert quantified appellant's sexual recidivism as
no higher than 36.3 percent; (2) the trial court erred by considering information
outside the record and misapplying the standard for commitment; (3) the trial
court erred by adopting an interpretation of the "highly likely" standard that
considered victim impact; (4) the court rules authorize a committee to engage in
discovery through depositions, document requests, and interrogatories; ( 5) the
trial court's decision was based on inadmissible hearsay; (6) the State's experts
were unqualified to testify as fact or expert witnesses on the Therapeutic
Community; and (7) the State's experts rendered inadmissible net opinions
A-2703-17T5 13 regarding the need for continuing commitment. We have considered these
arguments and find they lack merit.
We first address appellant's argument that he was entitled to engage in
discovery through interrogatories, deposing a member of the TPRC, and
production of documents pertaining to the Therapeutic Community. He
contends, as a civil litigant, his right to discovery is governed by Rules 4:10-1
and -2, which permit parties in civil cases to undertake discovery through
interrogatories, depositions, and requests for production of documents. Relying
on an unpublished opinion, 7 appellant further contends Rule 4:74-7(d) does not
deprive him of the right to conduct the requested discovery in an SVPA
proceeding. We are unpersuaded by this argument.
Appellate courts "normally defer to a trial court's disposition of discovery
matters." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997). We "apply an
abuse of discretion standard to decisions made by . . . trial courts relating to
matters of discovery." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371 (2011) (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)).
7 "No unpublished opinion shall constitute precedent or be binding upon any court." R. 1:36-3. Indeed, unreported decisions "serve no precedential value, and cannot reliably be considered part of our common law." Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001) (Verniero, J., concurring). A-2703-17T5 14 Ordinarily, "we decline to interfere with discretionary rulings involving
discovery unless it appears that an injustice has been done." Cunningham v.
Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).
We discern no abuse of discretion by the trial court in denying appellant's
motion to compel discovery through interrogatories, depositions, and document
demands, but reach that conclusion on different grounds than the trial court. See
State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an appellate
court is "free to affirm the trial court's decision on grounds different from those
relied upon by the trial court").
We begin our analysis by noting appellant received substantial discovery
from the State. The State timely provided all of appellant's treatment records,
treatment notes, and its experts' reports and curriculum vitae.
The trial court concluded discovery in civil commitment hearings is
limited by Rule 4:74-7(d) to a "right to inspect and copy all records relating to
the patient's mental condition, including the patient's clinical chart." The SVPA
and the court rules are silent as to the nature and extent of discovery available
to a sexually violent predator, other than the right under N.J.S.A. 30:4-27.30(a)
to review the documents resulting in the temporary commitment. We decline to
apply Rule 4:74-7 to SVPA proceedings "because the rule predates the SVPA
A-2703-17T5 15 and by its terms it applies to civil commitments generally, incorporating the
definitions in N.J.S.A. 30:4-27.2." In re Commitment of G.D., 358 N.J. Super.
310, 316 (App. Div. 2003) (citing R. 4:74-7(a)).
Even so, the statutory procedures are far more circumscribed than other
types of civil proceedings. A civil committee under the SVPA does not have
the right to trial by jury. In re Civil Commitment of G.G.N., 372 N.J. Super. 42,
46 (App. Div. 2004) (citing In re Civil Commitment of J.H.M., 367 N.J. Super.
599, 606-07 (App. Div. 2003)). Nor does a civil committee have the right to
review the report prepared for the Department of Corrections' use in determining
whether he should be referred to the Attorney General for civil commitment
proceedings. Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257 (App.
Div. 2006). In addition, the SVPA requires a final hearing within twenty days
of the temporary commitment. N.J.S.A. 30:4-27.29(a). Meeting that deadline
would not be possible if the committee were permitted to propound
interrogatories and conduct depositions.
The SVPA took effect in August 1999. L. 1998, c. 71, § 1. No published
opinion during the intervening nineteen years recognizes the right to engage in
such discovery. Nor has the Supreme Court adopted specific SVPA discovery
A-2703-17T5 16 rules. Such considerations "are more appropriately the subject of evaluation by
the Civil Practice Committee." G.D., 358 N.J. Super. at 317.
We further note trial courts may limit discovery on motion of a party or
on its own initiative. R. 4:10-2(g). Not only did appellant have possession of
the treatment records, treatment notes, and expert reports prior to the hearing,
but both of the State's experts were extensively cross-examined by defense
counsel. Thus, appellant suffered no unfair prejudice as a result of the discovery
limitation imposed by the trial court.
That being said, we recognize "committees have the right to present
evidence" at review hearings "on the issue of whether or not they have been
receiving appropriate treatment." In re Civil Commitment of K.D., 357 N.J.
Super. 94, 98 (App. Div. 2003). The SVPA charges the Division of Mental
Health Services with providing treatment for the committee. Id. at 98-99. "Such
treatment shall be appropriately tailored to address the specific needs of sexually
violent predators." Id. at 99 (quoting N.J.S.A. 30:4-27.34(b)). Consequently,
courts have the inherent power to examine the conditions of confinement and
treatment recommended for an SVPA committee. Ibid. Nevertheless, a review
hearing is not the proper proceeding to challenge a sex offender's treatment
program. Ibid. As we stated in K.D.:
A-2703-17T5 17 We certainly do not suggest that any individual commitment review hearing be converted into a challenge to the sexual offender's treatment program available routinely to the general population of committees at the [STU]. Such a challenge must be brought in a plenary individual or class action in the regular trial courts, state or federal, and not in a particular committee's individual initial or annual review hearing under the SVPA, the purpose of which is to decide if confinement under the SVPA and [In re Commitment of W.Z., 173 N.J. 109 (2002)] standards is proper.
[Ibid.]
The Therapeutic Community is in regular use at the STU. According to Dr.
Paolillo, it is utilized at the STU "to support[] the treatment needs of those
[r]esidents who present with sexual preoccupation, antisocial and/or addictive
behaviors."8
The trial court expressly stated appellant could challenge the
appropriateness of the Therapeutic Community in a separate action. We agree.
Although appellant has the right to challenge his treatment program, including
the recommended Therapeutic Community, he must do so in a separate plenary
8 The Therapeutic Community is also part of the sex offender treatment program at the ADTC, G.G.N., 372 N.J. Super. at 47, and is used at correctional facilities to treat "inmates with moderate to extreme substance use disorders," N.J.A.C. 10A:24-1.3.
A-2703-17T5 18 action, not in a review hearing. Appellant can pursue the types of discovery he
sought in this matter in such a plenary action.
In a single sentence unsupported by case law, appellant further contends
the trial court's limitation on discovery violated his right to due process. 9 We
disagree. Appellant will be afforded full due process if he brings a separate
plenary action to challenge his treatment plan, including the right to obtain
relevant discovery through the methods permitted under Rules 4:10-1 and -2.
For these reasons, the trial court's discovery limitation did not violate appellant's
due process rights.
Appellant further argues the State's experts offered inadmissible net
opinions. We disagree.
"When reviewing an evidentiary ruling whether to bar expert testimony,
we apply considerable deference to the trial court and generally do not disturb
the trial court's decision unless the ruling demonstrably comprises an abuse of
discretion." In re Civil Commitment of A.Y., ___ N.J. Super. ___, ___ (App.
Div. 2019) (slip op. at 24) (citing Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008)).
9 "[P]arties may not escape their initial obligation to justify their positions by specific reference to legal authority. Paucity of such reference suggests a like paucity of authority helpful to the party." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977); see also Sackman v. New Jersey Mfrs. Ins. Co., 445 N.J. Super. 278, 298-99 (App. Div. 2016). A-2703-17T5 19 "An expert may not provide an opinion at trial that constitutes 'mere net
opinion.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)
(quoting Pomerantz, 207 N.J. at 372). The net opinion rule bars admission "of
an expert's conclusions that are not supported by factual evidence or other data."
Townsend v. Pierre, 221 N.J. 36, 53-54 (2015) (quoting Polzo v. Cty. of Essex,
196 N.J. 569, 583 (2008)). "The expert must provide the factual basis and
analysis that support the opinion, rather than stating a mere conclusion." A.Y.,
(slip op. at 25) (citing Davis, 219 N.J. at 410). "[T]he net opinion doctrine
requires experts to 'be able to identify the factual bases for their conclusions,
explain their methodology, and demonstrate that both the factual bases and the
methodology are [scientifically] reliable.'" Id. at 26. (quoting Townsend, 221
N.J. at 55).
Both of the State's experts interviewed appellant and relied on prior
evaluations, treatment records, other appropriate documents, including actuarial
instruments, which supported their conclusions. Appellant contends the trial
court's decision was based on inadmissible hearsay. We disagree.
"[T]o the extent the information the experts relied upon is of a type
reasonably relied upon by experts in that field, the State can prove the grounds
for commitment without calling as a witness each person who provided
A-2703-17T5 20 information upon which the expert relied." Id. at 21 (citing In re Civil
Commitment of W.X.C., 407 N.J. Super. 619, 641 (App. Div. 2009), aff'd on
other grounds, 204 N.J. 179 (2010)).10 "Prior expert opinions are admissible,
not as substantive evidence, but as a basis for the expert's opinion." Id. at 22
(citing In re Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004)).
The State's experts provided the factual bases for their conclusions and
explained the methodologies they employed. Their testimony confirmed their
opinions were based on a review of data and information of the type relied upon
by others in their scientific community. Although their conclusions differ from
those of Dr. Lorah, the trial court properly determined they did not render net
opinions.
The applicable law and our scope of review is well settled. Involuntary
civil commitment under the SVPA can follow an offender's completion of a
custodial sentence when he or she "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."
10 The Confrontation Clause of the Sixth Amendment of the United States Constitution does not apply to civil commitment hearings under the SVPA. G.G.N., 372 N.J. Super. at 57 (citing Commonwealth v. Given, 808 N.E.2d 788, 794 n.9 (2004)). A-2703-17T5 21 N.J.S.A. 30:4-27.26. 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." Ibid.
The mental abnormality or personality disorder "must affect an individual's
ability to control his or her sexually harmful conduct." W.Z., 173 N.J. at 127.
A showing of an impaired ability to control sexually dangerous behavior will
suffice to prove a mental abnormality. Id. at 129; see also R.F., 217 N.J. at 173-
74.
At an SVPA commitment hearing, the State has the burden of proving the
offender poses a threat:
to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State 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.
[W.Z., 173 N.J. at 132.]
The court must address the offender's present "serious difficulty with
control over dangerous sexual behavior." Id. at 132-33. To commit or continue
the commitment of the individual to the STU, the State must establish by clear
and convincing evidence that it is highly likely the individual will sexually
A-2703-17T5 22 reoffend within the reasonably foreseeable future. Id. at 133-34; see also R.F.,
217 N.J. at 173. Because commitment under the SVPA is based on "present
serious difficulty with control over dangerous sexual behavior," the "annual
court review hearings on the need for continued involuntary commitment"
require assessment of "fresh information concerning the committee's
dangerousness." W.Z., 173 N.J. at 132-33.
The trial court correctly applied these standards to the evidence adduced
at the 2017 review hearing. The testimony of the State's experts clearly
demonstrates appellant continues to have mental abnormalities that pose a
serious danger that he will sexually reoffend if released from the STU. Although
Dr. Lorah opined appellant was not highly likely to sexually reoffend, the trial
court is "not required to accept all or any part of" an expert's opinion. R.F., 217
N.J. at 174 (quoting In re D.C., 146 N.J. 31, 61 (1996)). The trial court had a
reasonable basis to credit the testimony of the State's experts over the more
positive opinions expressed by Dr. Lorah. See Angel v. Rand Express Lines,
Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (recognizing the fact-finder's
prerogative to accept the opinions of certain testifying experts and to reject
competing opinions of an opposing expert). Moreover, "[t]he ultimate
A-2703-17T5 23 determination is 'a legal one, not a medical one, even though guided by medical
expert testimony.'" R.F., 217 N.J. at 174 (quoting D.C., 146 N.J. at 59).
Appellant argues the State failed to meet its burden of proof because the
actuarial instruments used by the State's psychiatrist quantified appellant's risk
of sexually reoffending at less than fifty percent. We disagree.
In W.Z., the trial court and the Appellate Division viewed the likelihood
determination "as if comparable to a preponderance, or fifty-one percent chance
of probability." W.Z., 173 N.J. at 131 (citing In re Commitment of W.Z., 339
N.J. Super. 549, 578-80 (App. Div. 2001)). Our Supreme Court rejected this
description of the probability of reoffending standard, stating "[t]hose
descriptions can cause confusion where the parties must present and the trial
court must evaluate difficult, nuanced medical evidence and reduce it to specific
findings affecting a person's liberty." Id. at 132.
"[I]n cases where lack of control is at issue, 'inability to control behavior'
will not be demonstrable with mathematical precision." Kansas v. Crane, 534
U.S. 407, 413 (2002). The Supreme Court declined to establish a precise
standard for the degree of "lack of control" that must be proven. Ibid. "Our
Supreme Court likewise did not impose a technical meaning or quantitative
threshold, holding 'the State must prove by clear and convincing evidence . . . it
A-2703-17T5 24 is highly likely that the person will not control his or her sexually violent
behavior and will reoffend.'" A.Y. (slip op. at 27) (alteration in original)
(quoting W.Z., 173 N.J. at 133-34).
Actuarial instruments "are admissible for consideration by the State's
experts" at SVPA proceedings "as a factor in the overall prediction process." In
re Commitment of R.S., 339 N.J. Super. 507, 534, 548 (App. Div. 2001), aff'd,
173 N.J. 134 (2002). Although properly considered as part of the calculus of
information, the quantification of the risk of sexually reoffending provided by
actuarial instruments is not controlling. On the contrary, actuarial information
is "simply a factor to consider, weigh, or even reject, when engaging in the
necessary factfinding under the SVPA." R.F., 217 N.J. at 164 n.9 (quoting R.S.,
173 N.J. at 137).
Our scope of review of judgments in SVPA commitment cases is
"extremely narrow." R.F., 217 N.J. at 174 (quoting D.C., 146 N.J. at 58). "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)). "We give deference to
the findings of our trial judges because they have the 'opportunity to hear and
see the witnesses and to have the "feel" of the case, which a reviewing court
A-2703-17T5 25 cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
"Accordingly, 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). "So long as the trial court's
findings are supported by 'sufficient credible evidence present in the record,'
those findings should not be disturbed." Ibid. (quoting Johnson, 42 N.J. at 162);
see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597 (2009).
Although appellant has exhibited some progress in the years following his
review hearing in May 2015, we are satisfied the trial court's order of continued
commitment is both legally sound and supported by sufficient credible evidence
in the record.
Appellant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2703-17T5 26