IN THE MATTER OF THE CIVIL COMMITMENT OF C.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2146-12T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.H.,

SVP-642-12.

_______________________________

Argued April 29, 2013 Decided July 1, 2013

Before Judges Parrillo, Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-642-12.

Mark H. Singer, Deputy Attorney General, argued the cause for appellant the State of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

Alison Perrone, Designated Counsel, argued the cause for respondent C.H. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief).

PER CURIAM

The State appeals from a December 26, 2012 order dismissing its petition for civil commitment of C.H. pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 ("SVPA"). In January 2013, we stayed C.H's release from the State of New Jersey Special Treatment Unit (STU)1 pending this accelerated appeal. We now reverse.

C.H., a rapist who is presently fifty-five years old, has a history of multiple convictions for sex crimes. Between 1978 and 2005, C.H. committed four sexual offenses on women who were between the ages of seventeen and thirty-six. C.H. has also been convicted of crimes of violence and of theft- and drug-related offenses. As a result of these convictions, C.H. has been sentenced to a total of forty years of incarceration.2

I.

In considering the parties' contentions on appeal, we bear in mind several controlling legal principles. Under the SVPA, an involuntary civil commitment can follow an offender's service of a 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 (emphasis added).

As defined by the statute, a mental abnormality is "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. A 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); In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 24 (App. Div.), certif. denied, 188 N.J. 492 (2006). A finding of a total lack of control is not necessary. W.Z., supra, 173 N.J. at 126-27. Instead, a showing of an "impaired" ability to control sexually dangerous behavior will suffice to prove a mental abnormality. Ibid.; In re Civil Commitment of R.Z.B., 392 N.J. Super. 22, 35 (App. Div.), certif. denied, 192 N.J. 296 (2007).

At a commitment hearing, the State must prove "a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts," which is done "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., supra, 173 N.J. at 132. The State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

After an SVPA offender has been committed initially, a court must conduct an annual review hearing to determine whether the person will be released or remain in treatment. N.J.S.A. 30:4-27.35. The State maintains the burden of proof and must demonstrate by clear and convincing evidence that the committed person "needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a).

II.

In May 2012, the State filed its petition for temporary commitment of C.H. to the STU. At that time, two psychiatrists, Roger Harris, M.D., and Pogos H. Voskanian, M.D.,3 determined that C.H. is highly likely to reoffend sexually. Harris had diagnosed C.H. with paraphilia NOS (non-consent), polysubstance abuse (alcohol), and antisocial personality disorder (ASPD). Voskanian agreed with Harris that C.H. fits the criteria for involuntary civil commitment pursuant to the SVPA.4

In November 2012, the parties proceeded to a commitment hearing. Harris and Nicole Paolillo, Psy.D., testified for the State. Timothy Foley, Ph.D., testified for C.H. The primary dispute during the hearing was whether C.H. was "highly likely" to reoffend if released from the STU. The December 26, 2012 order under review emanated from this hearing. We discern the following facts from the record on appeal.

In June 1978, C.H. then twenty years old forced a seventeen-year-old girl, K.P., to perform fellatio on him. In November 1978, C.H. pled guilty to sexual assault for that offense, and the court sentenced him to eleven months in the county jail.

In May 1980, C.H. attempted to rape A.W. In March 1981, C.H. pled guilty to attempted criminal sexual contact. In May 1981, the court sentenced him to eighteen months for the sexual contact and five years in prison on a separate charge of theft.5

In July 1990, C.H. was involved in an incident with a woman identified as D.L. D.L. stated to the police that she was asleep on her couch, C.H. entered the house without knocking and placed his hands on her shoulders, and then she attempted to run to the kitchen. D.L. explained that C.H. punched her in the face and grabbed her by the neck. C.H. "made [her] swear . . . that [she] would stop screamin[g]." C.H. took her into the bathroom and directed her to remove her shorts. When D.L. refused, he removed them for her, told D.L. to bend over the bathtub, and he proceeded to engage in vaginal sex with her, which lasted for approximately one hour. During this experience, C.H. threatened that he would hurt her "if [she] didn't shut up an[d] stop screamin[g]," and C.H. told her not to call the police.

In October 1991, an incident occurred between C.H. and S.S. S.S. stated to the police that C.H. pulled S.S. into C.H.'s home and locked the door behind them upon entering. S.S. ran to C.H.'s kitchen and picked up a pair of scissors, and C.H. then grabbed S.S. by both hands and "slam[med]" her against the kitchen wall. C.H. dragged S.S. into his living room and pushed her down onto a mattress and hit her in the face four or five times. S.S. began screaming "as loud as [she] could scream." C.H. then leaned in as if to kiss S.S. "or to hush [her] up," but S.S. bit C.H.'s bottom lip. S.S. then ran out of C.H.'s house with the scissors still in her hand. C.H. did not pursue her. S.S. said to the police that "I feared for my damn life. . . . I feared for [a] violation of my privacy, I feared for everything. . . . I meant to do him [bodily] harm with those scissors." In March 1992, C.H. pled guilty to terroristic threats regarding S.S., and the State dismissed a charge for attempted criminal sexual contact. In May 1992, the court sentenced C.H. to 164 days in the county jail and imposed a two-year probationary term.

In August 1992, C.H. violated his probation by committing new offenses resulting in charges of assault, criminal sexual assault, criminal sexual contact, criminal restraint, and criminal attempt. The victim, K.K., stated to the police that she accepted C.H.'s invitation to drive her home. Instead of driving her home, however, C.H. drove K.K. to an empty parking lot. C.H. reached over K.K. to lock her door, and then "jump[ed] on top of [her]." He put his hands over her mouth and told her to "shut up" or he would "f---" her. K.K. began to kick and scream, and C.H. started choking her and bit her on the chin. K.K. said that C.H. was "fightin[g] in [her] face" and punching her while she was kicking at the windshield and "screaming to the top of [her] lungs." C.H. tried to put his hands up K.K.'s shorts. The police arrived, K.K. exited the car, and officers arrested C.H.6

In March 1993, C.H. again violated his probation when he was arrested in Maryland and charged with second-degree rape and assault and battery. C.H. threw the victim, L.J., on the bed, threatened to kill her and her children, and then forced her to have intercourse with him. C.H. told her that he would "kill [her] right then" if she did not "shut up."7

In June 1994, a Maryland jury found C.H. guilty of second-degree rape and destruction of property. The court sentenced C.H. initially to life imprisonment without the possibility of parole; however, the court subsequently resentenced C.H. to a seventeen-year prison term. In July 2005, C.H. was released from prison in Maryland and began a parole term set to expire in March 2010.

C.H. violated his parole repeatedly, resulting in an aggregate of approximately twenty-two additional months of incarceration.8 In January 2006, Catoctin Counseling suspended C.H. from his mandatory sex offender treatment for failing to pay the required fees. In June 2006, C.H. was charged with committing second-degree assault. In April 2007, C.H. failed a urine test by testing positive for cocaine. In the same month, the court issued a bench warrant and C.H. was taken into custody. C.H. then admitted that he had used cocaine "two [to] three days" before he submitted the urine sample, and marijuana twenty days prior to the urine test. In September 2007, C.H. was released from custody. In October 2007, C.H. was arrested for failing to register as a sex offender. In August 2008, C.H. failed a breathalyzer test. In September 2008, he was arrested again for failing to register as a sex offender. At some point thereafter, defendant was incarcerated and released on March 09, 2009.9

C.H. also has a history of committing non-sexual crimes. In 1976, C.H. was found guilty of robbery, and was sentenced to two years in prison, with one year of parole ineligibility. In 1981, C.H. was convicted of theft-related offenses and was sentenced to five years in prison on a receiving stolen property offense and six years of imprisonment for burglary. In 1983, C.H. was found guilty of robbery and sentenced to ten years in prison.

III.

Harris, Paolillo, and Foley interviewed C.H., issued forensic reports, and testified at the hearing.

In May 2012 and November 2012, Harris interviewed C.H., then fifty-five years old, at the State's request, and in November 2012, Harris issued his forensic psychiatric report. Harris diagnosed C.H. with paraphilia. He defined paraphilia as a condition that "involves recurrent and intense experience of fantasies, urges, and/or behavior involving sexual arousal to certain inappropriate stimuli, such as exposing themselves, having an arousal to children, [or] having an arousal to coercive sex." Harris stated that paraphilias are "considered enduring" throughout a person's life. Harris also diagnosed C.H. with ASPD, noted that C.H. was deceitful, particularly with respect to his criminal history, and concluded that C.H.'s criminal offenses and parole violations showed, among other things, impulsivity, failure to plan ahead, and a reckless disregard for the safety of others. Harris maintained that C.H. "was not able to understand how he would become aggressive and coerce someone to become a victim as he uses them to sexually gratify [himself]." Harris added that C.H.'s aggression is "clearly an area he does not understand."

Harris noted that C.H. "has very limited [experience in] sex offender treatment," and "he has not given himself the opportunity to mitigate his risk to sexually reoffend." Harris also wrote in his report that C.H. had "not given himself the opportunity to demonstrate an awareness of his problematic arousal pattern which drove the behaviors in his sexual offenses." Harris observed that although C.H.'s "score of 5 on the Static-99R[10] places him in a category of men who were at moderate to high risk to sexually reoffend when released from prison," that result "underestimates his risk to sexually reoffend." Harris determined that C.H. was "at high risk to sexually reoffend" and therefore met the statutory requirements for civil commitment.

Harris testified that C.H.'s "antisocial attitudes and behaviors remain robust at this time," as evidenced by C.H.'s willingness to "find ways at a moment's notice [to] impulsively try to explain away behavior as a way to minimize his prior actions without thinking about what he may have said or the impact of his current explanation." He also observed that C.H. has not taken responsibility for his sexual offenses, and he thought that there was a "contemptuous and impulsive quality to [C.H.'s] reports."

Harris testified that after C.H.'s release from prison in Maryland, he spent over a year in jail for violations of his parole terms, including drug and alcohol use, and failing to attend sex offender treatment. Harris believed those violations demonstrated C.H.'s difficulty with adhering to supervision and the expectations offered to him. He also pointed out that C.H.'s description of his drug and alcohol use was inconsistent with his parole violations.

Harris elaborated on his diagnosis of paraphilia. He said that C.H. engaged in "repeated behaviors of coercing a woman to . . . meet his sexual demands," starting in 1978 and continuing over fifteen years despite multiple arrests and convictions. Harris believed that such a pattern was "indicative of a specific arousal to coerce an individual for his sexual gratification." Harris explained that C.H.'s sexual and nonsexual behaviors, coupled with C.H.'s impulsivity and lack of responsibility, warranted the conclusion that C.H. suffers from ASPD. He said that the combination of ASPD and paraphilia increased C.H.'s risk of reoffending. He added that C.H.'s alcohol use "will further erode whatever remaining way he has of inhibiting these impulses."

Harris admitted that C.H.'s conditions are of a sort that "can lessen over time," but he nevertheless believed that his "antisocial characteristics remain alive and well." He stated that treatment could be beneficial to C.H., but C.H. has not had enough treatment to control his impulses. Specifically, he noted that C.H. "is trying to take a step," in that C.H. is beginning to recognize that he has higher expectations of sexual intimacy than a situation would justify. He said that C.H. nevertheless failed to understand the "many steps that lead[] to his being physically aggressive towards [women] and assaulting them to get them to comply [with] his sexual demands."

Harris opined that C.H. has "serious difficulty controlling his sexual offending behavior." He maintained that C.H. was at a high risk of sexually reoffending even though C.H. had not reoffended since his release from prison, because the "risk of sexual offending is measured in a larger time block." He pointed out that C.H. went ten years without committing a sexual offense between 1980 and 1991, but then C.H. committed three sexual offenses in as many years.

On cross-examination, Harris disagreed with the assertion that most sex offenders who are going to reoffend do so within two years of their discharge. He stated that C.H.'s antisocial personality disorder mitigated the effect that advanced age would have on his risk of committing another offense. Harris listed C.H.'s repeated sexual offenses, the early onset of such behavior, C.H.'s persistent antisocial behavior, C.H.'s behavior while on parole, and C.H.'s misrepresentations of his sexual misconduct as further reasons why he believed C.H.'s age would not decrease his chances of committing additional offenses.

In November 2012, Paolillo performed a forensic evaluation of C.H. at the State's request. Paolillo explained that C.H. scored a 29 on the Psychopathy Checklist-Revised, 2nd Edition ("PCLR"), which defines psychopaths and cuts off at a score of thirty or above. Paolillo wrote that C.H. "tends to deflect responsibility." She explained that C.H. told Voskanian in May 2012 that he had been falsely accused by all of his sexual offense victims. She also repeated C.H.'s 1993 attribution of his circumstances to the "court system." Paolillo also observed that C.H. has a general lack of empathy for his victims, and he lacks remorse for his actions. She further wrote

[M]anipulative tendencies were present. He was clearly attempting to present himself as knowledgeable of treatment despite failing to present a merely concrete understanding of concepts. He also repeatedly insisted that he committed rape[,] only to shift and deny this moments later. It is interesting that during his interview with Dr. Harris in May 2012 he declined to discuss his sexual offense because of the "shame" he feels. This lies in stark contrast to his frequent sentiments reflecting his sense of injustice and being a victim of wrongful accusations. He also fails to report honestly despite that his history of rule breaking behaviors are well documented by the parole department.

Paolillo determined that C.H. suffers from paraphilia focusing on non-consent, and this condition predisposes him toward committing a sexually violent act. She also concluded that C.H. has a dependence on alcohol. She said that although this dependence does not in itself predispose C.H. toward committing a sexually violent act, alcohol's disinhibiting qualities serve as a link between his alcohol abuse and his sexual offending.

Paolillo also diagnosed C.H. with ASPD, due to his "pervasive pattern of disregard for and violation of the rights of others, [his] failure to conform to social norms, and [his] lack of genuine remorse for [his] actions." She added that he has an impulsive personality, has a lack of concern for the wellbeing of others, and avoids taking responsibility for his actions.

Paolillo assessed C.H. under the Static-99R test, and determined that his score of six placed him in the high-risk category for committing further sexual offenses. Paolillo explained that C.H.'s score placed him in the upper 90-95th percentile of all sex offenders with regard to likelihood of recidivism. Paolillo concluded within a reasonable degree of psychological certainty that C.H. was "highly likely" to engage in future acts of sexually deviant behavior if released into the community.

During the interview with Paolillo, C.H. denied that he committed the sexual offenses and instead indicated that any sexual contact was consensual. Later in the interview C.H. stated to her that he "knows that he has a deviant arousal that will never go away." C.H. denied use of illegal substances, except a one-time experimentation with marijuana.

Paolillo expressed that the length of C.H.'s sexual criminal history was significant, and testified that there was a consistency in the victim profiles, in that C.H.'s victims generally all knew him from their youth and in that C.H. was physically aggressive and verbally threatening. She cited C.H.'s early onset of antisocial behavior as an important fact.

Paolillo diagnosed C.H. with alcohol dependence and noted that C.H. failed to report to her his cocaine use and his history of selling drugs. She thought this was significant because it was "monetarily benefitting from . . . kind of exploiting the weaknesses of others and . . . this is obviously illegal behavior, so it's generally antisocial behavior."

Paolillo remarked that C.H. "presented as though he was admitting to rapes and then when I would ask him further[,] he was not admitting to rapes." She added that C.H. claimed that L.J. had asked him to stop while they were engaging in consensual sex, but he "didn't care." She further recalled C.H.'s explanation that "he must have failed to appreciate her boundary and that he really must have been raping her but didn't realize it." Similarly, she referenced C.H.'s claim that he accidentally raped K.P. when he passed out while his penis was inside her vagina and she asked him to stop. Paolillo said, with respect to C.H.'s explanations of his sex crimes, that "[n]one of it made any sense." Paolillo explained that C.H. deflected responsibility for his parole violations because he explained that he was the one who was "violated."

Paolillo thought it was "irrefutable" that C.H. did not know "what deviant arousal was [or] whether it applied to him." C.H. lacked an understanding of how to prevent himself from committing further sex crimes. She recalled that C.H. told her he could avoid more false accusations by being more selective about the women he is with. She said, "[h]e couldn't really identify beyond referencing weaknesses how he would do that." She said that C.H. "doesn't have the tools to intervene and interrupt his cycle," and that he doesn t appreciate what the cycle is. Although he attended some sessions with a therapist prior to his civil commitment, Paollilo stated that he had not been attending a regular process group where he could "actually work on [his] offenses and dynamics," on advice of his attorney.

Paolillo explained that in addition to the Static-99R, she considered his noncompliance with his parole terms as a "significant predictor" of recidivism. She said that she thought C.H. was a psychopathic individual, and that psychopathy is "another significantly related aggravating factor."

In November 2012, Foley performed his forensic psychological examination of C.H. Although Voskanian and Harris reported a Static-99R score of five, Foley computed a score of four or five. Foley wrote, "[m]ore importantly, there is [a] basis to conclude that [C.H.'s] Static-99R score equates with the 'highly likely' requirement in the statute." Foley determined that C.H. meets the criteria for ASPD and alcohol dependence.

Foley noted that after C.H. was released from prison in 2005, C.H. was homeless at times, violated parole four times, and tested positive for alcohol, marijuana, and cocaine. He also noted that an anonymous person called "an agent" and said that C.H. was "rough with her when she refused to have sex with him" in April 2007. C.H. admitted to raping A.W. in 1980, adding that he held her down after she refused his request for sex. He also admitted to "manipulating" S.S. for sex, and not paying her with crack as agreed. Foley believed that C.H.'s sexual offenses were the "product of an antisocial lifestyle punctuated by drugs and alcohol." Nevertheless, Foley concluded that C.H. is not highly likely to perpetrate further sexually violent acts, mainly because C.H.'s "penchant for violent and sexual behaviors does lessen" with increased age.

Foley testified that he found evidence that C.H. suffers from ASPD, alcohol dependence, and substance abuse. He further testified that he did not ask C.H. about the alleged 2007 incident that an anonymous caller reported to "an agent." Foley said that he did not learn of that incident until after he interviewed C.H. Foley concluded that C.H. is "less than highly likely to commit sexually violent acts."

At the end of the hearing, the judge concluded that "the State has not shown by clear and convincing evidence that [C.H.] is highly likely at the present time" to commit further sexual offenses. He determined that "there's no question that [C.H.] meets the criteria" for ASPD. The judge noted that C.H. "repeatedly perform[ed] acts that are grounds for arrest," and that C.H. is impulsive, recklessly disregards the safety of others, and lacks remorse. The judge did not believe that "the facts in the record support[] the existence of a paraphilia." He said that although C.H. engaged in forced sex with L.J., the cause "was clearly his [ASPD]. He wanted to have sex. She didn't want to have sex with him anymore. . . . [H]e couldn't deal with it." The judge observed the pattern was that C.H. wanted to have sex with a person, that the person was unwilling, "and so on."

The judge conceded that there is a risk that C.H. will reoffend, and he did not disagree with Paolillo's assessment that C.H.'s various conditions predisposed him to committing sex crimes. The judge disagreed with Foley's assessment that C.H.'s conditions did not predispose him to committing sex crimes.

IV.

On appeal, the State argues that the judge found erroneously that C.H. is not highly likely to sexually reoffend. The State contends that the judge abused his discretion by failing to properly evaluate C.H.'s predisposition to commit sexually violent acts due to his undisputed APSD.

In reviewing trial court orders committing offenders under the SVPA, we apply a narrow scope of review. We only "reverse a commitment for an abuse of discretion or lack of evidence to support it." In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App. Div. 2007). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

"[E]xpert testimony is needed where the factfinder would not be expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). "Expert testimony, however, 'need not be given greater weight than other evidence nor more weight than it would otherwise deserve in light of common sense and experience.'" State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004) (quoting Torres, supra, 342 N.J. Super. at 430), appeal dismissed, 187 N.J. 74 (2005). The factfinder, of course, is free to accept or reject all or part of an expert's testimony. Ibid. "Respecting expert opinions of psychiatrists or psychologists, the court, sitting as a factfinder, must use its 'common sense and ordinary experience.'" Ibid. (quoting In re Yaccarino, 117 N.J. 175, 196 (1989)). "This is particularly true when, as here, the factfinder is confronted with directly divergent opinions expressed by the experts." Ibid.

Although the judge was empowered to accept or reject the various expert opinions and was permitted to evaluate those opinions in light of all the evidence in the record, we conclude that the grounds he articulated demonstrate a mistaken exercise of discretion. We reach this conclusion for several reasons.

First, the judge acknowledges that C.H. is still a risk, C.H.'s ASPD remains robust despite his age, and that C.H. possessed strong psychopathic traits as evidenced by his PCLR score. The judge also stated, regarding Paollilo, that she "also diagnosed paraphilia, NOS, alcohol dependence, psychosis by history[,] and [ASPD]. She felt [C.H.] was predisposed, and I don't disagree with that, and that he would have serious difficulty, [and] was highly likely" to reoffend. The judge stated that "at this point in time[,] [C.H.] . . . [is] clearly predisposed . . . by his [ASPD] to engage in act[s] of sexual violence."

Second, it is undisputed that C.H. demonstrated an inability to live a law-abiding life and disregarded the well-being of others, which is further evidence of his strong ASPD. C.H. did not remain arrest-free during his parole. The judge misconstrued C.H.'s parole period by concluding that C.H. remained arrest-free for four or five consecutive years.11 Rather, C.H. remained arrest-free for only a few months, or possibly up to one year, at a time. The trial court's apparent misapprehension about the length of C.H.'s period of release significantly flaws its analysis of his allegedly offense-free conduct. In addition, to the extent that C.H. may not have committed the sexual offenses while he was on parole supervision, that does not necessarily equate with a law-abiding disposition. A person presumably would be less likely to sexually reoffend during a period when he knew he was being monitored. C.H. has therefore shown his impulsivity and strength of his ASPD since his initial release from imprisonment in 2005, which has been marred by repeated parole violations.

Third, the judge gave insufficient weight to the undisputed evidence that C.H.'s substance abuse issues remained unresolved. This is so even though the judge stated, "I don't know that I agree with Dr. Foley," that C.H.'s ASPD, alcohol, and substance abuse "don't predispose [C.H.]." C.H. admitted that with alcohol and drugs he could "go further and further" with women, and C.H. has denied or minimized the history of his criminal sexual offenses. The judge stated, "I agree that . . . he's diagnosed with [ASPD] and . . . a polysubstance dependence. . . . [A]nd he certainly could benefit from treatment, no question about that." The judge did not impose any conditions on C.H.'s release despite Foley's suggestion that supervision would be helpful.

Fourth, Harris and Paolillo agreed that C.H. remains at a high risk of reoffending. They based this determination on their conclusion that C.H. suffers from a life-enduring paraphilic disorder focusing on non-consent, and that his score on the Static-99R showed that he has a moderate to high risk of committing new sexual offenses. They also agreed that C.H. suffers from ASPD. Although the judge agreed with Foley that C.H. does not have a paraphilic disorder,12 the judge indicated that C.H.'s sexually violent crimes were more properly attributed to his APSD. The judge acknowledged that Dr. Harris concluded that C.H.'s "antisocial attitudes and behaviors remain robust despite [his] age of [fifty-five]."

Regarding the undisputed diagnoses of ASPD, the judge recognized that C.H. satisfied the diagnostic criteria for ASPD, such as failing to conform to social norms, demonstrating deceitfulness and impulsivity, showing a disregard for the safety of self and others, and lacking remorse. The judge remarked that the cognitive aspects of C.H.'s "anti-sociality are quite clear. . . . [C.H.] will make up a story to explain away any actions without regard to what he may have said before and the record clearly supports that conclusion." The judge correctly recognized, then, that C.H. had a pattern of forcing sex on unwilling women.

Fifth, there is insufficient evidence to conclude, as the judge did, that C.H. had "aged out" of his sexually violent tendencies. The evidence demonstrates that those tendencies stem from C.H.'s ASPD, in that he acts on his own desires in spite of the harm he inflicts upon others. In his interviews with Harris and Paolillo, C.H. demonstrated that his antisocial tendencies have endured into middle age. He continues to act in disregard of others, shows limited and inconsistent remorse for his past crimes, and deflects responsibility for the harm he has inflicted.

Finally, C.H.'s commitment will be reviewed periodically pursuant to N.J.S.A. 30:4-27.35. Thus, we have not ordered a remand hearing.13 Nevertheless, at the next review hearing, we direct the judge to explore in more depth the troubling issues implicated by the record, especially this particular passage in Foley's expert report

[C.H.] was reportedly released from a Maryland prison on July 20, 2005. Supervision records from December 8, 2006 to April 27, 2010 were available for review. He apparently had difficulty paying for sex offender services and was homeless at times. He was positive for alcohol, marijuana, and cocaine and typically admitted the same on occasion. His parole was violated on four occasions and he was returned to prison. The undersigned was not able to precisely determine the length of time he spent in the community versus confinement. An anonymous caller contacted an agent and reportedly relayed that [C.H.] was "rough with her when she refused to have sex with him" in April 2007. There is no further meniton of the alleged or similar incidents contained in the file. . . .

[(Emphasis added).]

The present record is unenlightening about this report. As Foley acknowledged in his testimony, he did not follow up on the subject with C.H. in his evaluation of appellant since he did not learn of the report until after their interview. Nor did the State's experts comment about it. And, the trial court's opinion does not mention it. At a minimum, C.H. should not be released into the community again until the April 2007 incident is either determined to be unsubstantiated or sufficiently addressed by the medical experts and the trial court.

R

1 Formerly known as the Northern Regional Unit.

2 It is not clear from the record exactly how much of the forty cumulative years, based on his various convictions, appellant actually spent incarcerated.

3 Given the frequency with which we refer to the different doctors throughout this opinion, we refer to them simply by their last names. We intend no disrespect.

4 Voskanian diagnosed C.H. with paraphilia NOS (non-consent), psychosis NOS by history, alcohol dependence, polysubstance dependence, and antisocial personality disorder (ASPD).

5 The record is unclear about whether C.H. served his full custodial term. It appears that he did not because C.H. was arrested on burglary charges in May 1983.

6 The charges were dismissed in March 1993.

7 At some point during this incident, C.H. stabbed to death L.J.'s family pet, a hamster.

8 The SVPA judge also estimated that C.H. was incarcerated for approximately twenty months during his parole term and stated that "it's not totally clear how long [C.H.] was in [custody]."

9 A July 2009 parole supervision summary states this.

10 The Static-99R form provides "an actuarial measure of relative risk for sexual offense recidivism."

11 While the duration of C.H.'s repeated incarceration due to his parole violations is murky, we estimate that he remained in jail for at least five months as a result of the April 2007 arrest for failing a urine test, ten-and-a-half months for his October 2007 arrest for failing to register as a sex offender, and seven additional months in jail for his September 2008 arrest for failing to register as a sex offender.

12 In rejecting a diagnosis of paraphilia, the judge referenced a "blog on psychology website [written by a Dr. Frances]." After citing the DSM-IV and listing the essential features of paraphilia, the judge commented on statements that Dr. Frances, a non-witness, made on the subject of paraphilia. Although we conclude that the judge reached his finding of no paraphilia on the evidence contained in the record, we are unclear what weight the judge placed on Dr. Frances's blog or hearsay statements.

13 The judge may, at his discretion, schedule a hearing before the next annual review of C.H.'s commitment. See In re Kallen, 92 N.J. 14, 30-31 (1983) (noting, by analogy, the authority of an administrative agency to reopen hearings to develop the record further where doing so would serve the public interest).