IN THE MATTER OF THE CIVIL COMMITMENT OF W.R.

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NOT FOR PUBLICATION WITHOUT THE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 W.R. SVP 656-12.

__________________________________

August 18, 2015

Submitted May 11, 2015 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-656-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

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

PER CURIAM

After being convicted of multiple sexually violent offenses, appellant W.R. was civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals, arguing the State failed to produce clear and convincing evidence that he should be committed. In particular, he claims there was insufficient evidence to support a finding that he suffers from a personality disorder predisposing him to commit acts of sexual violence. We affirm.

I.

In 1987, appellant was accused of having sexual intercourse with his fourteen-year-old mentally handicapped cousin after the victim's brother caught him in the act. Appellant pled guilty to two counts of fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3(b), and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Appellant was sentenced to eighteen months in prison.

In 1993, appellant was accused of pulling a nine-year-old girl into the laundry room of an apartment building, putting his hands inside of her underwear, and touching her buttocks and vagina. Appellant was charged with second-degree sexual assault, N.J.S.A. 2C:14-2(b). The matter was downgraded to simple assault, N.J.S.A. 2C:12-1(a), and appellant served ninety-five days in prison.

In 1994, appellant allegedly reached his hands underneath the dress of a fifty-six year old woman to grab her buttocks. Appellant was again charged with second-degree sexual assault, N.J.S.A. 2C:14-2(b). The charge was downgraded to harassment, N.J.S.A. 2C:33-4(b), and was remanded to Municipal Court, where it was dismissed.

In 2009, while on probation, appellant was accused of touching the breasts and vaginal area of an eleven-year-old girl at a family gathering, pressing his erect penis against her buttocks, and offering her five dollars to let him to touch her. In September 2010, appellant pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). Appellant was sentenced to four years in prison and parole supervision for life.

Appellant also has a long history of committing non-sexual offenses. His criminal history includes twenty-two arrests, nine convictions, and three state incarcerations, as well as several violations of probation. On August 17, 2012, the State filed a petition to involuntarily commit appellant under the SVPA. A hearing was held on January 10, 2013, where the State presented testimony from Dr. Michael Kunz, M.D., a psychiatrist, and Dr. Jamie Canataro, Psy.D., a psychologist. Appellant presented no witnesses.

Dr. Kunz based his report and testimony on his interviews with appellant, totaling one hour and forty-five minutes, as well as the pre-sentence report, police reports, and victim statements. Dr. Kunz diagnosed appellant with anti-social personality disorder (ASPD). He testified that appellant demonstrated poor impulse control, highlighting his extensive criminal history as well as his multiple violations of probation. He also noted that court-imposed measures to restrain appellant's behavior, such as probation, were not sufficient. Dr. Kunz found appellant's attacks in 1993 and 2009 were suggestive of pedophilia, and considered such a diagnosis, but declined to reach that diagnosis until appellant's sexual predilections could be specified through treatment. However, he noted the diagnosis should be kept in mind for future evaluations and treatments. Dr. Kunz also diagnosed appellant with polysubstance dependence, which disinhibited him and contributed to his improper sexual behavior.

Dr. Canataro based her report on several documents, including the pre-sentence report, victim statements, past psychological reports, past psychiatric reports, and her own diagnostic source material. Dr. Canataro was scheduled to interview appellant, but appellant did not want to participate in the interview. Based on the documents she reviewed, she diagnosed appellant with ASPD and pedophilia, as well as polysubstance dependence which served as a disinhibitor.

In its January 10, 2013 oral opinion, the trial court credited both experts. The court found, based on clear and convincing evidence, that appellant met the requirement for civil commitment, including that he was "highly likely to engage in further acts of sexual violence if not confined to the [Special Treatment Unit] for control, care, and treatment." Appellant appeals the decision of the trial court, claiming

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT W.R. WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR.

II.

We must hew to our "'extremely narrow'" standard of review of a commitment hearing. In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (citation omitted). Appellate courts "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 cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Furthermore, "[t]he judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (citation omitted). Their determination is accorded much deference, and may only be modified, "if the record reveals a clear mistake." In re D.C., 146 N.J. 31, 58 (1996).

III.

Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). Three requirements must be satisfied to classify a person as a sexually violent predator

(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."

[R.F., supra, 217 N.J. at 152 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)); see also N.J.S.A. 30:4-27.26.]

A.

As appellant pled guilty to sexual assault in 2010 and was sentenced to four years in prison, it is undisputed that he has been convicted of a sexually violent offense. N.J.S.A. 30:4-27.26.

To be designated a "sexually violent predator," one must be diagnosed with 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." Ibid. The SVPA defines a "[m]ental abnormality" as a "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. Although the SVPA does not define "personality disorder," our Supreme Court has held it sufficient if the offender has a mental condition that adversely affects his "ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127; see also N.J.S.A. 30:4-27.26.

Here, both of the State's experts diagnosed defendant with ASPD. ASPD is a recognized personality disorder, and can be sufficient under the SVPA when the symptoms manifest in a sexually violent manner and it reduces the offender's ability to control his sexually violent conduct. W.Z., supra, 173 N.J. at 114; see e.g., In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 629 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, 562 U.S. 1297, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). Here, Dr. Kunz and Dr. Canataro were in agreement with regard to appellant's diagnosis of ASPD. Both testified it reduced appellant's ability to control, and manifested in, his sexually violent conduct. The trial court credited and adopted this conclusion.1

Appellant challenges Dr. Canataro's diagnosis of pedophilia. Appellant claims Dr. Canataro's diagnosis is incorrect and not based on conclusive data. As support for this claim, appellant cites the fact that Dr. Canataro is the only doctor who did not personally interview appellant, and is the only doctor who diagnosed him with pedophilia.2 However, appellant refused to interview with Dr. Canataro. One who refuses to be examined cannot complain that the State psychiatrist's opinion is not based on personal observation. In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28-30 (App. Div.), certif. denied, 188 N.J. 492 (2006).

Regardless, the trial court could and did credit Dr. Canataro's diagnosis of pedophilia. A trial judge may "'accept all or any part of [an] expert opinion,'" as "[t]he ultimate decision is 'a legal one, not a medical one.'" R.F., supra, 217 N.J. at 174. Further, we defer to the credibility findings of the trial court, particularly because trial courts hearing SVPA case are accorded special deference and are considered specialists in the area of civil commitment. Ibid.

Appellant cites the diagnosis of a doctor who determined appellant's sexually violent conduct was repetitive but not clearly compulsive, and was better understood as arising from his ASPD. That doctor determined that he was ineligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10, which requires a finding that "the offender's conduct was characterized by a pattern of repetitive, compulsive behavior," N.J.S.A. 2C: 47-3(a). "[T]he fatal flaw in defendant's argument lies in its failure to appreciate that the Sex Offender Act and the SVPA are designed to serve different purposes . . . through different regulatory mechanisms." W.X.C., supra, 204 N.J. at 196. "As compared to the definition used in the SVPA for purposes of civil commitment and treatment, the defining statutory language in the Sex Offender Act is far narrower[.]" Id. at 199. "[T]he diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion'" such as pedophilia. W.Z., supra, 173 N.J. at 129.

B.

There is sufficient evidence to support the trial court's finding that the State proved it was "highly likely" appellant will not control his sexually violent behavior and will reoffend. W.Z., supra, 173 N.J. at 130. Such a finding requires "an assessment of the reasonably foreseeable future "based on the individual's danger to . . . others because of his . . . present serious difficulty with control over dangerous sexual behavior." Id. at 132-33. "'[T]he final determination of dangerousness lies with the courts, not the expertise of psychiatrists and psychologists.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 174 (2001) (quoting D.C., supra, 146 N.J. at 59).

Both Dr. Kunz and Dr. Canataro testified appellant is highly likely to reoffend unless confined in a secure facility for treatment. This was determined after considering appellant's Static 99R score,3 and weighing those results with factors "that are not accounted for in the Static 99R." Dr. Kunz and Dr. Canataro both testified that appellant's Static 99R score indicated he was at a "moderate high risk of reoffending," but that risk heightened after taking into account certain factors not measured by the Static 99R.

Under the SVPA, the trial court may consider appellant's "history, recent behavior and any recent act or threat." N.J.S.A. 30:4-27.2(i). Appellant argues the trial court erred in placing too much emphasis on his past conduct. However, our Supreme Court, and this court have held the "the best predictor of a registrant's future criminal sexual behavior is that registrant's prior criminal record." In re Registrant, C.A., 146 N.J. 71, 90 (1996); see also State v. Moya, 329 N.J. Super. 499, 513 (App. Div.) (finding that "past conduct is important evidence as to probable future conduct and should be given substantial weight in a dangerousness determination"), certif. denied, 165 N.J. 529 (2000). Despite appellant's argument that he does not suffer from a lack of control, the experts clearly testified otherwise and the trial court was entitled to accept their opinions that he is highly likely to commit sex offenses if released.

Appellant argues the State failed to prove he was a highly likely to reoffend in the "reasonably foreseeable future". See W.Z., supra, 173 N.J. at 131. However, the State proved, and the trial court found, 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 the foreseeable future. Id. at 132. "No more specific findingconcerning precisely when an individual will recidivate need be made by the trial court." Ibid.

Here, Dr. Kunz and Dr. Canataro both cited several factors to substantiate appellant's high risk of reoffending, including: his repeated offenses committed while under external supervision, such as probation; his "varied victim profile"; his substance dependence, which disinhibits him from controlling his sexual urges; and his lack of treatment for his sexual offenses and his substance dependence, and "has no knowledge of relapse prevention." The experts also opined defendant's age was not a mitigating factor, as he committed his 2009 offense when he was forty-five years old. The trial court credited the testimony of both experts presented by the State. As appellant did not bring experts or witnesses forth to challenge their determinations, we see no reason not to accord deference to the trial court's determination that appellant was highly likely to reoffend with additional sexually violent behavior.

Accordingly, there is ample support in the record validating the trial court's determination that appellant is a sexually violent predator and is highly likely to reoffend unless he is civilly committed. Appellant has not proffered a valid basis for reversal.

Affirmed.

1 In reaching this conclusion, the experts and the trial court could consider defendant's illegal actions in 1993 and 1994, even though they resulted respectively in a non-sexual conviction and a dismissal. In re Civil Commitment of J.M.B., 197 N.J. 563, 597 n.9 (mental health experts may "use presentence reports because 'they are the type of evidence reasonably relied on by psychiatrists in formulating an opinion as to an individual's mental condition'"), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); W.X.C., supra, 407 N.J. Super. at 474 (same for police reports); N.J.R.E. 703. In re Civil Commitment of J.P., 393 N.J. Super. 7, 18 (2007) (finding defendant s past offenses as sufficient substantial evidence . . . even though the guilty pleas entered were for endangering the welfare of a child ).

2 Appellant cites earlier reports finding he had ASPD, but not pedophilia. Those reports were by non-testifying doctors who recommended whether he should serve his 2010 prison term in the Adult Diagnostic and Treatment Center (ADTC), and whether the State should seek civil commitment. Their reports were admitted at the commitment hearing subject to hearsay limitations and for the assistance of the court in determining the credibility of the testifying expert.

3 "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." R.F., supra, 217 N.J. at 164 n.9. Its actuarial data may be considered when engaging in fact finding under the SVPA. Ibid.