IN THE MATTER OF THE CIVIL COMMITMENT OF J.E.D.

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NOT FOR PUBLICATION WITHOUT THE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 J.E.D. SVP-210-01.

__________________________________

July 5, 2016

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-210-01.

Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant J.E.D. (Joseph E. Krakora, Public Defender, attorney).

Matthew J. Lynch, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney).

PER CURIAM

J.E.D. appeals from a December 4, 2015 judgment continuing his involuntary commitment to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that the trial court erred in determining that he remained highly likely to commit a sexually violent offense in the foreseeable future. He further contends that the trial court erred in not affording more weight to his expert's testimony and his progress in treatment.1 We reject J.E.D.'s contentions and affirm substantially for the reasons stated in Judge Philip M. Freedman's comprehensive oral decision of December 4, 2015.

Shortly before completing his sentence for four counts of second-degree sexual assault, J.E.D. was civilly committed in 2001 to the STU pursuant to the SVPA. Since that time, J.E.D.'s commitment has been reexamined at periodic review hearings. In each instance, the trial court has determined that J.E.D. continues to meet the SVPA's criteria for civil commitment and this court has upheld that determination.2 This is J.E.D.'s eighth appeal of his commitment following a review hearing conducted on November 12, 2015.

We incorporate the facts and procedural history set forth in our seven prior opinions. It has been conclusively established in those cases that J.E.D. committed the predicate sexually violent offense required under the SVPA. See N.J.S.A. 30:4-27.26. Specifically, J.E.D. pled guilty in 1997 to sexually assaulting on various dates four different female victims, ranging from seven to twelve years of age. J.E.D. was sentenced to four concurrent seven-year terms to be served at the Adult Diagnostic and Treatment Center (ADTC), where he remained until he was transferred to the STU following the State's successful petition for civil commitment pursuant to the SVPA. For the second time, J.E.D. is currently in the therapeutic community (TC)3 within the STU and has been there since May 2015.

At the review hearing that is the subject of this appeal, the State presented two expert witnesses, Dr. Indra Cidambi, a psychiatrist, and Dr. Nicole Paolillo, a psychologist, both of whom testified in favor of continued commitment. J.E.D. presented one expert witness, Dr. Christopher Lorah, a psychologist, who testified in favor of a conditional release. The parties stipulated to the qualifications of the experts. Their respective reports, along with J.E.D.'s treatment notes, were admitted into evidence without objection.

The State's experts agreed that J.E.D.'s diagnosis of pedophilic disorder, related specifically to males and females non-exclusively, continues to meet the criteria of the SVPA. Dr. Cidambi also diagnosed J.E.D. with "other specified personality disorder with narcissistic traits." Dr. Paolillo agreed that J.E.D. had narcissistic traits. Although both experts confirmed that J.E.D. scored a 2 on the Static-99R,4 indicating that his risk to reoffend is at a "low moderate rate," they opined that his condition caused him to have serious difficulty controlling his sexual offending behaviors and he remained in need of continued commitment as he was highly likely to reoffend if released from the STU at this time.

J.E.D.'s history of institutional infractions was well documented. Over the years, J.E.D. engaged in approximately thirty consensual sexual encounters with men, both at the ADTC and the STU, and was found to be in possession of pornographic DVDs. These infractions have resulted in MAP5 placements as well as his removal from the TC. More recently, in 2015, J.E.D. disclosed massaging other residents and having erections while doing so, and attempting to engage in sexual conduct with another resident but stopping because he was interrupted.

Dr. Cidambi interviewed J.E.D. on November 2, 2015. She testified that J.E.D. has strong sexual arousal impulses and his offending history6 showed he had "strong urges" to offend against minor pre-pubescent children. Although J.E.D. informed her that, currently, he only masturbates to adult men and women, he disclosed that, in 2014, during the arousal reconditioning module, he had a "pop up" deviant arousal and masturbated to the arousal reconditioning script. Dr. Cidambi also noted that, in 2015, when J.E.D. talked about his healthy and unhealthy fantasies, he read over his healthy ones quickly, but read the unhealthy deviant fantasies at a slower pace, with "loads of detail." She opined that these were all indicators of a stronger arousal towards children.

Dr. Cidambi noted inconsistencies in J.E.D.'s acceptance of his diagnosis as a pedophile as well as his homosexuality, and stressed the importance of J.E.D. understanding and accepting both. In referencing J.E.D.'s institutional history of acting out sexually, Dr. Cidambi pointed out that the TC treatment team did not believe that J.E.D. was "fully engaged in treatment." The team believed that he was "minimizing his arousal with contradictory presentation" and that he demonstrated a "poor understanding of his deviant arousal."

Dr. Cidambi underscored that J.E.D. had a pattern of engaging in treatment well in the beginning, but later regressing, as evidenced by his earlier removal from the TC at the ADTC and the STU for inappropriate sexual conduct. Dr. Cidambi opined that J.E.D. should continue at the TC level of care because of pockets of weaknesses in his response to treatment. She explained that he needed to work on "talking about his deviant arousal" and being "consistent" with his presentations in order to make progress.

Dr. Paolillo, a member of the Treatment Progress Review Committee (TPRC),7 met with J.E.D. on October 6, 2015. The treatment team reported to her that J.E.D.'s current membership in the TC was "tenuous" because of concerns arising from J.E.D.'s contradictory statements regarding his diagnosis as a pedophile. The treatment team noted that this "vacillating component" to his presentation continued to occur in treatment, indicating that he is "very easy to steer." These concerns were consistent with Dr. Paolillo's impressions of J.E.D.

Dr. Paolillo described J.E.D. as "more intelligent than a lot of [the] residents." She testified that he was generally compliant in treatment, "successful in modules[,]" "cognitively capable" and insightful about his dynamics. However, according to Dr. Paolillo, J.E.D. has difficulty integrating what he has learned into his daily life, and his personality "impedes . . . his execution of his knowledge" because of his tendency to become defensive when confronted. Dr. Paolillo explained that this pattern of defensiveness is not "something that has remitted greatly in any meaningful way, and it continues to afflict him" and impedes "his success in treatment."

Dr. Paolillo testified that J.E.D. has a fragile self-worth and an identity that is "somewhat underdeveloped." She opined that the fragility of J.E.D.'s self-worth and fear of rejection are contributing factors to his offending dynamics. She explained

[H]e has reported that part of the reason that he was interested in children was their acceptance of him, and a lot of times you'll see in individuals who suffer from pedophilic disorder they have a hard time relating to individuals in their own age group. They feel less than, inadequate, and intimidated, and that children, who are psychologically more vulnerable, impressionable, kind of can provide them with a sense of acceptance that they don't get from their own age group. And so it kind of I think encourages their interest in that direction.

Although Dr. Paolillo encourages J.E.D. to work on his self-image and, in particular, his understanding of how his disability8 informs his offending dynamics, to date, J.E.D. has not been receptive.

Dr. Paolillo agreed that J.E.D.'s history of engaging in sexual relations with over thirty residents at the STU and ADTC is an "indication of poor sexual impulse control." She testified that J.E.D. was inconsistent about his urges to engage in sexual activity and opined that this inconsistency is "an ingrained behavior" in which "he will say one thing and then contradict himself and go the other way." In rendering her opinion that J.E.D. was not ready for a conditional discharge, Dr. Paolillo relied on the fact that J.E.D. has not been "exceptional in treatment[,]" "has had hiccups[,]" and "has engaged in sexual behavior."

Dr. Paolillo continued

And his biggest impediment has been his personality. He is difficult for therapists to work with. I think he self-sabotages in one of the most authentic presentations I've observed at the STU. He is an individual who will, I feel, intentionally throw himself under the bus to halt the process. He has low self[-]worth. I think he's fearful of reintegrating into the community. And[,] I think it directly relates to his physical disability, which he's to some degree in denial of, and psychologically defensive about.

Dr. Paolillo predicted that J.E.D. had the potential to enter a protracted furlough process in the near future.

Contrary to the State's experts, Dr. Lorah opined that J.E.D. was highly likely to comply with a conditional discharge. Dr. Lorah evaluated J.E.D. before the hearing and agreed with the diagnosis of pedophilia, but did not concur that J.E.D. also has a separate diagnosis of other specified personality disorder with narcissistic traits. Dr. Lorah acknowledged J.E.D.'s admission to being aroused during the arousal reconditioning module in 2014, but explained that it is natural for an arousal reconditioning module to trigger some level of sexual arousal in a pedophilic disordered man. Dr. Lorah also conceded that J.E.D. gives in to his sexual impulses although they get him into trouble and, referring to J.E.D.'s institutional infractions, admitted that J.E.D. chooses not to use his relapse prevention strategies in relation to having sex with other residents.

However, Dr. Lorah assessed J.E.D.'s risk of reoffending as "below the highly likely threshold" considering "his engagement in treatments and the stipulations of a conditional discharge." Dr. Lorah discounted J.E.D.'s conduct in sexually acting out within the facility, explaining that he did not see the relevance "to his risk," and concluded that while J.E.D.'s pedophilia predisposed him to commit a sexual crime, "it's manageable in the community with a conditional discharge." Dr. Lorah reasoned

that therapy has increased his understanding of the impact of his behavior, and that he's working on his communication skills. . . . I believe that he's addressed the cognitive aspects of the statute by working on his distortions and his justifications of his sexual acting out. . . .

[H]e has not acted out or demonstrated . . . observable evidence of a pedophilic disorder at the STU, given the caveat, of course, that this is a controlled setting. He has not had collections of children's clothing, he has not . . . collected Sears catalogs, or child erotica, or communicated with children outside of the institution, so there's nothing observable there that we can see that he's continuously demonstrating symptoms of pedophilia.

In a detailed oral opinion spanning thirty-six transcript pages, Judge Freedman found by clear and convincing evidence that J.E.D. "suffer[s] from a mental abnormality, a form of pedophilia which clearly predisposes him to engage in acts of sexual violence that affects him [in] all three areas, emotionally, cognitively and volitionally." Relying on the balancing test enunciated in In re Commitment of W.Z., 173 N.J. 109 (2002), the judge noted that "the nature of what he, 'tends to do,' is very serious, and . . . his propensity to do it, taking into account his admissions, is high, and therefore based on that test he remains a dangerous person within the meaning of the statute." The judge determined that if J.E.D. was 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."

While acknowledging Dr. Paolillo's opinion that J.E.D. was getting close to a conditional discharge, Judge Freedman agreed that J.E.D. was still not ready to be discharged because of his inconsistency in treatment, his unwillingness or inability to follow rules, and his decision to repeatedly give in to his sexual impulses, rather than follow known relapse prevention strategies. In making his findings, the judge credited the testimony of the State's experts and rejected J.E.D.'s expert's assessment reasoning

[Dr. Lorah] diagnosed pedophilia. He did not diagnose a personality disorder. He, by implication, agreed that he was predisposed because he recommended conditional discharge and felt that it would reduce his risk below highly likely. And again, by implication he is agreeing that if he were released without any conditions he would be highly likely [to reoffend]. He tried to play down the number of times that [J.E.D.] had sex in the institution. He said it's not relevant to risk. I disagree with that. It's certainly relevant [to] the issue of whether he's capable of complying with rules and regulations. It's certainly relevant to any conditional discharge where the statute directs that . . . the [c]ourt has to make a finding that the person is highly likely to comply and follow the regulations of a conditional discharge.

And he points out that there was no evidence of attraction to children at the STU. He didn't have pictures [and] he didn't have pornography. He wasn't caught with any of that. That doesn't mean he didn't have it. But setting that totally aside, his history and his admissions make it extremely clear that he is a pedophile with a deviant arousal to children. And the doctor testified, in fact, that he felt he would be highly likely to comply, and I disagree with that. There's no evidence of that here. [J.E.D.] does comply with some things, but he obviously doesn't with others, and so that to say at this point that he would be highly likely to comply I think is an error.

The judge signed a memorializing order continuing J.E.D.'s commitment in the STU and this appeal followed.

We begin with a review of basic principles. An involuntary civil commitment 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 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." W.Z., supra, 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 In re Commitment of R.F., 217 N.J. 152, 173-74 (2014).

At the SVPA commitment hearing, the State has the burden of proving 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." W.Z., supra, 173 N.J. at 132. The 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." Ibid. To commit or continue to commit the individual, the court must address the offender's "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 132-34; 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 126-32. However, "an 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.

Our Supreme Court has recently reaffirmed that an appellate court's scope of review of a judgment for commitment under the SVPA "is extremely narrow." R.F., supra, 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We must "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)). Moreover, "[t]he 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)). Accordingly, a SVPA trial judge's determination either to commit or release an individual is accorded substantial deference and should not be modified by an appellate court "unless the record reveals a clear mistake." R.F., supra, 217 N.J. at 175 (internal citations omitted). "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, supra, 42 N.J. at 162); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009).

Applying this limited scope of review here, we affirm the trial court's order of continued commitment. The court's conclusions are amply supported by the evidence and consistent with the law governing SVPA proceedings. In stark contrast to J.E.D.'s expert's testimony, the testimony of the State's experts clearly demonstrates that J.E.D. continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released. Judge Freedman carefully scrutinized the expert testimony and the documentary evidence, and soundly explained his reasons for accepting or rejecting these proofs.

J.E.D. contends that the trial court erred in not affording more weight to his expert's testimony and his progress in treatment. The trial court had the prerogative as the fact-finder to find the State's experts more credible than J.E.D.'s, and to credit the former's assessment of J.E.D.'s deficiencies in treatment. Where qualified experts present opposing opinions on disputed issues, the trier of fact is free to accept the testimony or opinion of one expert and reject the other, as occurred here. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); see also Model Jury Charge (Civil) 1.13 "Expert Testimony" (2009) and 1.13(B) "Optional Charge in Case of Conflicting Expert Testimony" (2009). Accordingly, we affirm the order of continued commitment, substantially for the reasons articulated at length by Judge Freedman in his December 4, 2015 oral opinion.

Affirmed.

1 By agreement of the parties and with the permission of the court, the appeal was argued without briefs.

2 In the Matter of the Civil Commitment of J.E.D., No. A-6164-02 (App. Div. June 29, 2004); In the Matter of the Civil Commitment of J.E.D., No. A-4425-04 (App. Div. December 21, 2005); In the Matter of the Civil Commitment of J.E.D., No. A-2692-06 (App. Div. May 31, 2007); In the Matter of the Civil Commitment of J.E.D., No. A-0053-08 (App. Div. January 2, 2009); In the Matter of the Civil Commitment of J.E.D., No. A-1141-10 (App. Div. April 21, 2011); In the Matter of the Civil Commitment of J.E.D., No. A-2440-12 (App. Div. August 6, 2013); In the Matter of the Civil Commitment of J.E.D., No. A-5595-02 (App. Div. November 26, 2014).

3 TC is an advanced stage of treatment where a resident "get[s] pull ups" and is able to work on his "difficult areas." TC is designed to impart a high level of confrontation and scrutiny that the resident typically experiences as stressful, which then requires the resident to execute his knowledge of treatment in order to be successful.

4 We have 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)). 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 Rev.sed-2003 5 (2003).

5 Modified Activities Program (MAP) is a "component of the clinical treatment program at the STU that focuses on stabilizing disruptive or dangerous behavior." See M.X.L. v. N.J. Dep't of Human Servs., N.J. Dep't of Corr., 379 N.J. Super. 37, 45-46 (App. Div. 2005).

6 Dr. Cidambi reviewed J.E.D.'s charged offenses, for which he was convicted, as well as his uncharged offenses against his three male cousins, ages six, ten, and sixteen. Initially, J.E.D. admitted that he "anally penetrated and fellated" his cousins, but later recanted and admitted only to sexual contact, explaining that he wanted to be perceived as more dangerous.

7 The members of the TPRC are psychologists responsible for review of the progress and treatment of persons committed to the STU.

8 J.E.D. has Arnold-Chiari Syndrome, a structural defect in the cerebellum part of the brain, manifesting itself in an uncommonly large head.