IN THE MATTER OF THE CIVIL COMMITMENT OF R.E.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE CIVIL

COMMITMENT OF R.E.B., SVP-367-04.

__________________________________

May 20, 2014

Submitted March 18, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-367-04.

Joseph E. Krakora, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Stephen Slocum, Deputy Attorney General, on the brief).

PER CURIAM

Appellant R.E.B. (Robert)1 appeals from the August 18, 2011 order continuing his involuntary commitment to the New Jersey 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. The State maintains that this appeal is moot as Robert has had an intervening annual review hearing and appeal, which resulted in his continued commitment. See In re Civil Commitment of R.E.B., SVP-367-04, No. A-3270-12 (App. Div. Nov. 25, 2013). To ensure Robert's substantive issues do not evade review, we address this appeal. See Jamgochian v. N.J. State Parole Bd., 394 N.J. Super. 517, 529 (App. Div. 2007), aff'd, 196 N.J. 222 (2008). We affirm.

At the time of the subject hearing, Robert was a sixty-two-year-old male with a long record of sexual assaults against minors, and production, possession, and sale of child pornography dating back to 1981. On April 6, 1995, Robert was convicted in the United States District Court for the District of New Jersey of (1) conspiracy, 18 U.S.C.A. 371; (2) sexual exploitation of children, 18 U.S.C.A. 2251(a); (3) interstate transportation of child pornography, 18 U.S.C.A. 2252(a)(1); (4) receipt, distribution, and reproduction of child pornography, 18 U.S.C.A. 2252(a)(2); and (5) possession of child pornography, 18 U.S.C.A. 2252(a)(4)(B). Robert was sentenced to 120 months in federal prison and released in 2002. In 2003, Robert was again sentenced to federal prison for violating the terms of his parole.

Shortly before Robert's release in 2004, the State petitioned for his civil commitment pursuant to the SVPA. In 2005, a Law Division judge concluded that Robert was a sexually violent predator and committed him to the STU. In April 2007, we affirmed that order. In re Civil Commitment of R.Z.B., SVP-367-04, 392 N.J. Super. 22 (App. Div.), certif. denied 192 N.J. 296 (2007).2

At the August 18, 2011 review hearing, the State presented the expert testimony of psychiatrist Michael Kunz, M.D., and psychologist Debra Roquet, Psy.D., a member of the Treatment Progress Review Committee (TPRC) at the STU. Robert testified on his own behalf and presented the expert testimony of psychiatrist Daniel Paul Greenfield, M.D. In addition, the trial court received into evidence the doctors' reports, various treatment notes, and other records.

Dr. Kunz interviewed Robert on September 23, 2010, and May 9, 2011. He testified that the information sources he relied upon were of the type customarily relied upon by professionals in the field of forensic evaluations, and that he formed his own diagnostic impressions when analyzing those sources. Dr. Kunz summarized Robert's history of sexual offenses against minors and testified that Robert minimized his crimes as an attempt to seek love and friendship rather than sex. The doctor noted that the results of the deviant arousal polygraph conducted on Robert in 2008 showed that he was still sexually aroused by young boys despite his denials to the contrary. The doctor stated that this attraction to underage boys would not spontaneously remit, and he found Robert's denials of deviant arousal implausible, especially in light of him being found to possess inappropriate materials at the STU.

Dr. Kunz conducted personality tests on Robert, which indicated that his intelligence was above normal, but also indicated he was highly defensive with regard to disclosing psychological problems. The doctor reported that Robert's profile was consistent with one who is highly resistant to change, psychopathic, antisocial, egocentric, and compulsive. Robert's tests also showed that he was likely to be impulsive and immature, seeking immediate gratification without concern for the consequences, as well as pleasure-oriented, seeking gratification at the expense of others' welfare.

The doctor opined that these traits, coupled with Robert's high intelligence, indicated that "cultivated and more clever criminal behavior [could] be expected." Dr. Kunz testified that Robert scored between 29.5 and 30.5 on the HARE Psychopathy Checklist, showing a high level of psychopathic traits, which is the strongest predictor of criminal and sexually deviant recidivism.

Dr. Kunz diagnosed Robert with pedophilia (sexually attracted to prepubescent males), non-exclusive; paraphilia NOS (hebephilia, sexually attracted to boys from the age of thirteen through seventeen); and a personality disorder with antisocial and narcissistic traits. The doctor acknowledged that Robert had been participating in some aspects of his treatment, but he believed that Robert had not sufficiently progressed in treatment to mitigate the risk that he would reoffend.

Dr. Roquet testified that she was a member of Robert's TPRC and authored the committee's July 20, 2011 report about his treatment progress at the STU. She reported that Robert was currently in Phase 3, which is the core phase of treatment, and recommended that he continue in that phase and not be released. Dr. Roquet stated that Robert had been participating in treatment and did not have any behavioral issues in the past year. She explained, however, that Robert was defensive and unresponsive to feedback, and he needed to focus on those areas of difficulty before being considered for placement in the therapeutic community, a higher phase of treatment. She related that the treatment panel's primary concern with Robert's progress in treatment was that he continued to view his offenses as attempts to satisfy his need for love and intimacy and failed to address his core sexual motivations and pathology that drove his behavior.

Dr. Roquet diagnosed Robert with paraphilia NOS (hebephilia); personality disorder NOS with antisocial and narcissistic traits; and a provisional diagnosis of pedophilia based on the fact that some of his victims were prepubescent. She made clear that these were life-long conditions that did not spontaneously remit. She opined that additional treatment was necessary to reduce Robert's risk of recidivism as he had failed to develop an understanding of his offending cycle, which was strongly indicated by his almost compulsive drive to possess child pornography both during his time in federal prison, and while at the STU.

The defense called Dr. Greenfield who testified that he had performed two interviews with Robert on January 19, 2011, and March 18, 2011. Dr. Greenfield diagnosed Robert with pedophilia, non-exclusive type, with attraction to males, and narcissistic personality disorder.

Dr. Greenfield relied heavily on Robert's age in reaching the conclusion that he was not highly likely to recidivate. He explained that around the age of fifty, sexual offense recidivism decreases significantly. The doctor believed that Robert's period of about eighteen months after his federal prison sentence without offending was a good prognostic indicator that he would be less likely to recidivate, especially since he was a younger man then. The doctor maintained that a committed offender need not complete all phases of treatment in the STU to cease to be highly likely to recidivate, and that Robert had a suitable discharge plan in place. On cross-examination, however, the doctor acknowledged that in pedophilia, as opposed to other paraphilias, age is less of a factor in re-offense.

Robert testified and discussed his sexual assault cycle, admitting that he molested the thirteen-year-old and fourteen-year-old boys in 1981. However, he asserted that at the time he was feeling emotionally vulnerable due to his struggles with his homosexuality in an unaccepting society, that the boys approached him for sex in exchange for money, and that, after resisting for several months, his resolve weakened and he had sex with them. In hindsight, he realized now that they were children having problems in their own lives, and he had taken advantage of them to satisfy his own deviant arousal.

Robert detailed the relapse prevention strategies he developed at the STU. He described that his new found ability to have loving relationships with men his own age had helped him replace his deviant thoughts with appropriate ones. Robert acknowledged that he would need continued treatment after release and explained how he would continue to use the strategies he developed in treatment to avoid re-offending.

At the close of the evidence, Judge John H. Pursel, in an oral opinion on August 18, 2011, found that the State met its burden and that Robert's commitment should continue. The judge observed that all three experts agreed to the diagnosis of pedophilia. He acknowledged that Robert had progressed in treatment, but he did "not yet understand the pathology of his underlying problem. He [had] a tendency to refer to it as a romantic relationship with these young men, rather than a gross sexual assault of people under the age of 18."

Regarding Robert's age as it related to his risk of re-offense, the judge explained:

He is aging. He's 62. And everybody admits that, on all the tests, the older you get the less likely you are to re-offend. However, Dr. Kunz was careful to point out that that really doesn't apply to the Axis of pedophilia. That never goes away. It may be somewhere . . . the likelihood to re-offend.

Also, there is the . . . psychopathy which comes up in many personality tests which the doctor testified is more likely to cause a problem, because the inhibitions which are present in most of us who are not psychopathic or close to it, but would prevent us from doing certain things. But when you're at that close level, almost [a score of] 30, between 26 and 30, your inhibitions don't work the way they're supposed to.

The judge found all the criteria met under the SVPA by clear and convincing evidence to continue Robert's involuntary civil commitment to the STU for control, care, and treatment. This appeal followed.

Before us, Robert raises the following points for our consideration:

POINT I: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [ROBERT] WAS SUBJECT TO SVP COMMITMENT.

POINT II: THE [ADULT DIAGNOSTIC AND TREATMENT CENTER] EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL.

POINT III: THE TRIAL COURT ERRED IN FAILING TO RULE THAT [ROBERT] WAS ENTITLED TO A CONDITIONAL DISCHARGE.

POINT IV: THE STATE'S EXPERT WITNESS OPINION SHOULD HAVE BEEN STRICKEN BECAUSE IT RELIED IN PART ON INADMISSIBLE EVIDENCE.

We find these contentions to be without merit. An involuntary civil 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. "[T]he State must prove that threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish "that it is highly likely that" the individual will reoffend "by clear and convincing evidence." Id. at 132-33 (emphasis omitted); see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment. N.J.S.A. 30:4-27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126-33. "[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community." Id. at 130.

In In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014), the Supreme Court restated the "extremely narrow" scope of appellate review of a commitment judgment. Quoting from In re D.C., 146 N.J. 31, 58 (1996), and citing State v. Fields, 77 N.J. 282, 311 (1978), the Court stated:

The judges who hear SVPA cases generally are "specialists" and "their expertise in the subject" is entitled to "special deference." 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." 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."

[R.F., supra, 217 N.J. at 174 (alterations in original) (internal citations omitted).]

This narrow standard of review requires that we defer to Judge Pursel's opportunity to evaluate the evidence firsthand and to his expertise in making determinations pertinent to Robert's commitment. After thoroughly reviewing the record in light of Robert's contentions, we affirm substantially for the reasons set forth by Judge Pursel in his oral opinion of August 18, 2011.

Judge Pursel fully explained his findings in his oral decision, which were based on Robert's offenses, conduct, and treatment history, as well as the credible testimony of the State's two doctors who diagnosed Robert and opined as to his risk of future re-offense. "[A]n 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., supra, 146 N.J. at 58). We see no clear mistake in Judge Pursel's findings and conclusions, which applied a clear and convincing evidence standard and were consistent with the applicable law. We are satisfied from our review of the record that the judge's findings were supported by substantial credible evidence. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

Affirmed.

1 We use a pseudonym to protect the privacy of the committee.

2 R.E.B. is referenced as "R.Z.B." in the 2007 appeal, but in his current appeal, he is consistently called "R.E.B."