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

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NOT FOR PUBLICATION WITHOUT THE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-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF E.D.,

SVP-75-00.

_____________________________

October 28, 2016

Submitted March 14, 2016 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-75-00.

Joseph E. Krakora, Public Defender, attorney for appellant (Patrick Madden, Assistant Deputy Public Defender, of counsel and on the brief).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

E.D. appeals from the June 25, 2014 order of the Law Division, vacating his conditional discharge and temporarily committing him to a Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm.

We need not recount E.D.'s prior criminal history or events since his original admission to the STU in 2000. They are recounted in sufficient detail in our Supreme Court's decision In re Civil Commitment of E.D., 183 N.J. 536 (2005), as well as our prior opinions, In re Civil Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002), In re Civil Commitment of E.D., No. A-3984-02 (App. Div. May 14, 2004), and In re Civil Commitment of E.D., No. A-0685-05 (App. Div. Jan. 14, 2008) certif. denied, 196 N.J. 86 (2008). Suffice it to say that E.D. was conditionally discharged from and returned to STU in 2003 due to a violation of conditions, then conditionally discharged in 2010, followed by the current controversy.

On April 10, 2012, E.D. was arrested for violation of his conditional discharge, alcohol usage, and GPS monitoring, and taken to the Essex County Jail. E.D. was released on his own recognizance on May 22, and ordered to contact parole so that he could be placed back on GPS monitoring. When E.D. failed to contact parole, an arrest warrant was issued and an order was entered that he be returned to STU upon apprehension.

On August 30, 2013, E.D. was extradited to Essex County, following his arrest in New York City two weeks earlier. He remained in the county jail until he was returned to STU on February 18, 2014.

At the civil commitment hearing on June 12, before Judge Philip M. Freedman, Dr. Roger Harris and Dr. Jamie Canataro, testified as experts for the State. Dr. Harris, a psychiatrist, stated that E.D. refused to be interviewed on June 6, but had previously consented to an interview on March 19. Based upon that interview, a review of E.D.'s treatment records, and records concerning what occurred during E.D.'s conditional discharge periods, Dr. Harris diagnosed E.D. with antisocial personality disorder and polysubstance dependence which affects him emotionally, cognitively, or volitionally, making him predisposed to commit acts of sexual violence. He dismissed the notion that E.D.'s age, fifty-six, would diminish his antisocial behavior. Dr. Harris opined that E.D. is highly likely to sexually reoffend unless confined in a secure facility for treatment.

Dr. Canataro, a psychologist, stated that E.D. scored 24.2 on the PCL-R (Psychopathy Checklist Revised), placing him in the moderate range of psychopathic tendencies, and seven on the Static 99R, putting him in a group of sexual offenders with a high risk to reoffend. She agreed with Dr. Harris' diagnosis which predisposes E.D. to commit acts of sexual violence. She also opined that E.D. was highly likely to reoffend unless confined because his disorder makes it difficult for him to control his sexual offending behavior.

Dr. Christopher Lorah, Ph.D. testified for E.D. and agreed with the State experts' diagnosis of antisocial personality disorder and polysubstance dependence, but opined that E.D. was not a high risk to reoffend acts of sexual violence and did not need to be confined. Dr. Lorah stated that E.D.'s age and treatment at STU negated the likelihood of committing further sexual violent offenses because he did not commit any sexual offenses while a fugitive.

In a comprehensive oral opinion rendered on June 23, Judge Freedman detailed E.D.'s criminal history, his confinement at STU, his conduct during conditional discharge, and the experts' testimony. The judge noted the three experts agreed that E.D. has antisocial personality disorder and polysubstance dependence. The judge credited, however, the opinions of Drs. Harris and Canataro, that the State proved by clear and convincing evidence that E.D. was predisposed to engage in acts of sexual violence,

and if [] released now, he would, in fact, have serious difficulty in controlling his sexually violent behavior [such] . . . that he would within the reasonably foreseeable future . . . be highly likely to engage in such acts.

. . . .

And . . . he would not be highly likely to comply with the conditions if he were released now.

Judge Freedman entered the order continuing E.D.'s commitment. This appeal followed.

Before us, E.D. argues that Judge Freedman erred in finding that his conduct warranted readmission to STU. E.D. contends that the judge should have disregarded the State's experts and given more credence to Dr. Lorah's opinion that E.D.'s behavior during his conditional discharge evinced he would not reoffend in a sexually violent manner. In a supplemental pro se brief, E.D. contends that his Fourteenth Amendment due process rights were violated once he was placed on Community Supervision for Life as part of his initial sentence and when the trial court was not notified upon his arrest on April 10, 2012, for violating his conditional discharge. We reject these arguments and affirm.

Our Supreme Court most recently said, "'[t]he scope of appellate review of a commitment determination is extremely narrow.'" In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (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)).

"The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act." In re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citing N.J.S.A. 30:4-27.28). It "requires proof of a past sexually violent behavior through its precondition of a 'sexually violent offense.'" Ibid. It also requires that the person must "'suffer[] 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.'" Ibid. (quoting N.J.S.A. 30:4-27.26).

The same standard "to support involuntary commitment of a sex offender under the Act . . . applies for a committee who has been given a conditional discharge and is alleged to have violated it." E.D., supra, 183 N.J. at 551. In either case, "'the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend.'" Ibid. (quoting W.Z., supra, 173 N.J. at 133-34).

As the fact finder, "[a] trial judge is 'not required to accept all or any part of [an] expert opinion[].'" R.F., supra, 217 N.J. at 174 (quoting D.C., supra, 146 N.J. at 61). Furthermore, "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., supra, 146 N.J. at 58). We find no clear mistake on this record.

There is no dispute that E.D. suffers from antisocial personality disorder, a necessary predicate for continued commitment under the SVPA. See e.g., In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014). Thus, Judge Freedman had to make credibility determinations regarding the competing experts' opinions as to whether it was "highly likely" that E.D. would not control his sexually violent behavior and reoffend. See R.F., supra, 217 N.J. at 173. Judge Freedman expressly credited Drs. Harris and Canataro opinions that E.D.'s disorder and past behavior demonstrate that he is highly likely to engage in acts of sexual violence unless he is confined. In doing so, he rejected Dr. Lorah's contrary opinion. We are satisfied that the record amply supports the court's determination, to which we owe "utmost deference" and may modify only where there is a clear abuse of discretion. In re J.P., 339 N.J. Super. 443, 459 (2001). There has been no showing of such a clear abuse.

We do not consider E.D.'s supplemental brief arguments which are being raised for the first time on appeal. We decline to consider them because they were not "'properly presented to the trial court'" and do not "'go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Affirmed.