IN THE MATTER OF THE CIVIL COMMITMENT OF W.W. (SVP-667-13, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 26, 2021
• Docket: A-1183-19T5
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1183-19T5

IN THE MATTER OF THE CIVIL COMMITMENT OF W.W., SVP-667-13 _____________________________

Submitted January 12, 2021 – Decided January 26, 2021

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-667-13.

Joseph E. Krakora, Public Defender, attorney for appellant W.W. (Jared I. Mancinelli, Designated Counsel, on the brief).

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

PER CURIAM

Appellant W.W. appeals from an October 16, 2019 Law Division order,

which found him to be a sexually violent predator and continued his involuntary commitment in the special Treatment Unit (STU) pursuant to the Sexually

Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

A judge committed W.W. to the STU in February 2013 pursuant to the

SVPA. The events that culminated in his commitment, including the sexual

assaults he committed against developmentally disabled women, are recounted

in our decision that affirmed that committal order and need not be repeated here.

In re Civil Commitment of W.W. (W.W. I), No. A-3281-12 (Apr. 18, 2016),

certif. denied, 327 N.J. 353 (2016).

Following a review hearing, a judge found "the State had clearly and

convincingly proven [that] W.W. continued to be a sexually violent predator in

need of civil commitment in a secure facility for control, care and treatment."

In re Civil Commitment of W.W. (W.W. II), No. A-5239-16 (Sept. 3, 2019) (slip

op. at 2). Therefore, W.W. remained committed at the STU.

W.W.'s next review hearing, which was held on October 10, 2019 before

Judge Philip M. Freedman, is the subject of the present appeal. The State relied

upon the testimony of a psychiatrist and a psychologist. Defendant testified on

his own behalf but did not present any expert witnesses.

Emily A. Urbina, M.D. was accepted by the court as an expert in

psychiatry. Dr. Urbina diagnosed W.W. with other Specified Paraphilic

A-1183-19T5 2 Disorder, Coercive, Antisocial Personality Disorder, and multiple substance

abuse disorders. Dr. Urbina opined that none of these diagnoses would

spontaneously remit and, therefore, W.W. required continued treatment to learn

to control his sexually violent tendencies.

According to Dr. Urbina, W.W.'s Static-99R results placed W.W. in the

"well above average" risk group. Dr. Urbina also noted that W.W.'s dynamic

risk factors, which included "sexual deviancy, difficulty with self-regulation,

poor cognitive problem[-solving] skills, [and] limited cooperation with

supervision," demonstrated his individual high risk to reoffend.

Christine Zavalis, Psy.D. was accepted as an expert in psychology by the

court and was a member of the Treatment Progress Review Committee (the

Committee) that evaluated W.W.'s progress in treatment. The Committee

recommended that W.W. needed continued treatment, but W.W. was resistant to

it, which highlighted his antisociality and his ongoing high risk to reoffend.

W.W. testified that there was a procedural error made at his initial

screening for the SVPA in 2013. However, Judge Freedman pointed out that

this issue was moot in light of the fact that the Appellate Division affirmed the

commitment order in W.W. I.

A-1183-19T5 3 Following the hearing, Judge Freedman rendered a comprehensive oral

opinion and concluded that W.W. should remain committed at the STU. In so

ruling, the judge found by clear and convincing evidence that W.W. had been

convicted of a sexually violent offense and "suffer[ed] from . . . mental

abnormalities and a personality disorder that separately, and certainly in

conjunction with each other, predispose [W.W.] to engage in acts of sexual

violence, as his record and his admissions in evaluations and in treatment clearly

indicate." The judge further found

that if [W.W.] were released he would have serious difficulty controlling his sexually violent behavior and would, within the reasonably foreseeable future[,] be highly likely to engage in acts of sexual violence. He's at the beginning stages of treatment despite having been [at the STU] for a number of years. He's fixated on some legal issue which I don't see exists, and he is really not engaging in treatment, unfortunately, based on my review of the treatment notes.

This appeal followed.

On appeal, W.W. argues that "the State presented insufficient evidence to

support a finding that W.W. required commitment to the [STU]." We disagree.

The governing law is clear. An involuntary civil commitment under the

SVPA can follow an offender's service of a custodial sentence, or other criminal

disposition, when he or she "suffers from a mental abnormality or personality

A-1183-19T5 4 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.

As defined by the statute, a "mental abnormality" consists of "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." In re Commitment of

W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control

sexually dangerous behavior will suffice to prove a mental abnormality. Id. at

129; In re Civil Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At a commitment hearing, the State has the burden of proving under the

SVPA that 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.]

A-1183-19T5 5 The court must address the offender's "present serious difficulty with con trol

over dangerous sexual behavior." Id. at 132-33 (emphasis omitted). To commit

the individual to the STU, the State must establish, by clear and convincing

evidence, that it is highly likely that the individual will reoffend. Id. at 133-34;

see also R.F., 217 N.J. at 173.

In this appeal, our review of Judge Freedman's decision 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)). On appeal,

we will not disturb the SVPA judge's decision unless there was a clear abuse of

discretion, and "it is our responsibility to canvass the record, inclusive of the

expert testimony, to determine whether the findings made by the . . . judge were

clearly erroneous." In re Civil Commitment of W.X.C., 407 N.J. Super. 619,

630 (App. Div. 2009), aff’d, 204 N.J. 179 (2010).

Applying these well-established standards, we affirm the order for W.W.'s

continued commitment at the STU, substantially for the reasons detailed in

Judge Freedman's oral opinion. The judge was entitled to accept Dr. Urbina's

uncontradicted expert assessment as to W.W.'s risk of re-offense. W.W. has not

A-1183-19T5 6 cooperated with the treatment required to address the disorders that led him to

commit the sexually violent offenses that required his commitment under the

SVPA.

In so ruling, we reject W.W.'s contention that because he has not

committed a sexually violent offense since February 2000, he is no longer in

need of commitment. W.W.'s argument ignores the fact that he has been

incarcerated or committed to the STU since his conviction for that offense.

Therefore, this gap in time does not signify that W.W. has the ability to control

his sexual urges if he were released from his controlled environment.

Finally, W.W. argues that Judge Freedman erred by finding that he preyed

upon developmentally disabled victims who were weaker than him. W.W.

claims that he, himself, scored below average on two I.Q. tests and, therefore,

was also developmentally disabled. This contention lacks merit. As Dr. Urbina

testified, W.W. exhibited no functional or cognitive limitations, which indicated

that he was simply uncooperative with the earlier I.Q. testing. Thus, there is

ample credible evidence in the record to support Judge Freedman's finding.

Affirmed.

A-1183-19T5 7