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NOT FOR PUBLICATION WITHOUT THE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

_________________________________

November 26, 2014

Argued October 20, 2014 - Decided

Before Judges Sabatino and Guadagno.

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).

Timothy Malone, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

Shortly before completing his sentence for four counts of second-degree sexual assault, appellant J.E.D. was civilly committed in 2001 to the Special Treatment Unit ("STU"), pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. Since that time, appellant's commitment has been reexamined at periodic review hearings. In each instance, the trial court has determined that appellant continues to meet the SVPA's criteria for civil commitment.

This is appellant's seventh1 appeal of his commitment, arising this time out of a two-day review hearing conducted in November and December 2013. Based on the evidence presented at that hearing, Judge Philip M. Freedman concluded that the State had shown, by the requisite level of clear and convincing proof, that appellant continues to have a mental abnormality or personality disorder, and that he is highly likely to reoffend if not confined. We affirm that determination, substantially for the sound reasons set forth in Judge Freedman's detailed bench ruling of December 20, 2013.

We incorporate the facts and procedural history set forth in our six prior opinions. It has been conclusively established in those cases that appellant committed the predicate sexually violent offense required under the SVPA. See N.J.S.A. 30:4-27.26. Specifically, appellant pled guilty in 1997 to sexually assaulting four different minor female victims, ranging from the ages of seven to twelve, committed on various dates. Appellant was sentenced for these offenses to the Adult Diagnostic and Treatment Center ("ADTC") to concurrent seven-year terms, which he served through November 2001 until he was transferred to the STU. Appellant is currently in what is known as "Phase 3A" of his treatment within the STU.

The State presented two expert witnesses at the most recent review hearing: Dr. Jamie Canataro, a psychologist; and Dr. Pogos Voskanian, a psychiatrist. Those experts agreed that appellant continues to have diagnoses of mental abnormalities or psychological disorders meeting the criteria of the SVPA, including pedophilia and personality disorder NOS (not otherwise specified).

Dr. Canataro is familiar with appellant as a member of the STU's Treatment Progress Review Committee ("TPRC"), and she interviewed him prior to the instant review hearing. She testified that appellant remains in need of continued commitment even though he has made some progress within the facility. She noted that appellant was not currently a member of the facility's therapeutic community, and that he was not attending self-help groups. Dr. Canataro also observed that appellant has struggled with "remaining receptive to feedback," and that he has sexually acted out within the facility. The psychologist found it significant that appellant had recently violated institutional rules by engaging in horseplay with another STU resident, conduct which "placed himself in a high-risk situation that could have resulted in counter-therapeutic behaviors." As Dr. Canataro summarized her findings

[Appellant] is an individual with a low-moderate actuarial score. He has been here since 2001 and that is in addition to three years of treatment at ADTC. [Appellant] is an individual who should have probably begun the discharge planning in years prior. His history here at the STU of sexually acting out at the facility, difficulty interacting, accepting feedback, has been his largest hindrances. He was an individual who you can't stand behind in order to push him towards discharge.

[Appellant] appears to be going on the right track now. He did have the one lapse, but he does appear to be heading on the right track. The panel would like to see [appellant] apply to the therapeutic community this review period.

Dr. Voskanian similarly determined that appellant is not presently suitable for release from the STU. He likewise interviewed appellant before the hearing, having done so previously in five other years. Dr. Voskanian noted that appellant exhibited hostility during the current interview, and that he appeared "very angry" and "very poorly controlled."

With regard to appellant's current treatment progress, Dr. Voskanian opined that

I don't see measurable progress in [appellant's] presentation. And what is of concern [is] that [appellant] has himself identified that anger, irritability are the feelings that are part of his cycle and that's when he becomes more likely to sexually act out, because then he becomes withdrawn, isolative, and then he sexually acts out. However, those same behaviors persist throughout his description over the past year, as well. One good thing, significant thing that during this 2013 [review period] he was not caught engaging [in] sexual contact. I don't know if he did or did not . . . [there] was suspicion, but he was not caught. But he was actively sexually acting out throughout last time in 2012. But at least he didn't get caught this year.

According to Dr. Voskanian, the combination of a personality disorder and pedophilia in a person, both of which have been diagnosed as to appellant, increases the risk that that person will sexually reoffend. Although it is possible for a person who is committed to treatment to control the impulses that result from such disorders, Dr. Voskanian found that appellant had not shown enough commitment and completed enough treatment so as to be able to adequately control those impulses. In fact, Dr. Voskanian found that appellant would have "serious difficulty" controlling his sexual offending behavior. As Dr. Voskanian explained

[Appellant] has not been able to control his impulses here at the STU. After years of treatment, to turn around and say that he was a pedophile and but now he is no longer a pedophile, that tells me that . . . there is no treatment benefit. His resistance to discuss sexual pathology also is a problem, because . . . I am going to interview him and I am trying to understand what is taking place at this time, and he is not even addressing the issues. He will sit there and just move on.

Okay. Similar approach . . . . He primarily focuses on his family issues during his floors. Him being a victim of the system, acts out and behaves in entitled manner and acts out sexually, except for this year. So, I do not see him being able not to break institutional rules while he is here. [T]hat suggests that he is more than likely or highly likely not to care about societal norms when he is outside.

In his own case at the hearing, appellant presented expert testimony from Dr. Christopher Lorah, a psychologist. Dr. Lorah interviewed appellant before the hearing. Dr. Lorah agreed with the State's experts in diagnosing appellant with pedophilia, although he did not concur that appellant also has a separate diagnosis of personality disorder. Dr. Lorah noted that appellant's score on the Static-99R diagnostic test placed him "below the highly likely range" for a sexual re-offense.

Dr. Lorah discounted appellant's conduct in sexually acting out within the facility, asserting that the conduct did not rise to a level of clinical concern. Dr. Lorah also did not find it significant that appellant had been previously dismissed from the STU's therapeutic community because of his improper behavior. Instead, Dr. Lorah opined that appellant could begin discharge planning appropriately without having to reenter the therapeutic community. Given that appellant had been institutionalized for twelve years at that point, Dr. Lorah recommended that a furlough process be undertaken to help appellant reintegrate into society.

After sifting through the testimony, the treatment records, and the rest of the proofs, Judge Freedman concluded that the State's experts were more persuasive than Dr. Lorah. The judge concluded that appellant remains highly likely to sexually re-offend if he were released from the STU.

In the course of his comprehensive opinion, Judge Freedman stated in detail why he rejected Dr. Lorah's comparatively optimistic assessment of appellant. The judge noted that Dr. Lorah gave insufficient importance to appellant's failure to control his urges while in the STU. As the judge noted

One of the very basic issues in this case is the ability of [appellant] to control himself. And if he can't control himself in the institution where he knows failure to control himself is going to impinge on his ability to receive a conditional discharge, to get released from a fairly onerous incarceration, shows a clear inability to control behavior.

In this regard, the judge found "very problematic" appellant's admission to Dr. Lorah during their interview that he "sexually acts out when he's looking for comfort." Judge Freedman also found that Dr. Lorah "over-credits [appellant] with regard to how far he's advanced in treatment."

The judge observed that the treatment notes "indicate[] minimal progress with regard to reducing [appellant's] risk for dangerousness." As the judge explained

I think those treatment notes clearly support the view expressed . . . by Dr. Canataro and expressed in the testimony . . . that . . . while [appellant] may understand some of the treatment concepts, he doesn't apply them very well. I think that his problem of lack of self[-]control is an important part of his problem. He continues to exhibit it here and, as a result, I think that the [S]tate's experts are correct in regard to his level of risk and I credit their testimony.

In addition, the judge observed that "there's no dispute that [appellant] suffers from a mental abnormality that predisposes him to engage in acts of sexual violence, as his record and his admissions clearly, clearly show. No doubt about that. There's no disagreement."

Judge Freedman credited the views of the State's experts, who had opined that the effects of appellant's treatment have not been sufficient to modify his risk below the level required for commitment. As the judge indicated, the treatment notes "clearly support" the State experts' findings that appellant has not progressed in treatment far enough in order to sufficiently reduce his risk of sexual re-offense, highlighting the fact that appellant has no outlets for his pedophilic arousal within the institution.

Judge Freedman thus concluded that the State had met its burden of proving by clear and convincing evidence that appellant is still predisposed to engage in acts of sexual violence

I'm satisfied that, if he were released, [appellant] would be highly likely to engage in acts of sexual violence, he would have serious difficulty controlling his sexually violent behavior, and would reoffend within the reasonably foreseeable future.

Underscoring that appellant had been convicted of sexually penetrating four minor children, the judge described him as

a prime example of what that kind of conduct can do to somebody. So, therefore, what he does is highly dangerous. He has a strong propensity to do it and, therefore, within the test of W.Z.,2 he's clearly a dangerous person.

Appellant contends3 that the trial court did not credit him sufficiently for his progress in treatment, and that the court also erred in finding that he currently suffers from mental abnormalities or personality disorders that make it highly likely that he will reoffend. We disagree.

The law is well settled. Pursuant to the SVPA, 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. . . . [T]he 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.

[W.Z., supra, 173 N.J. at 132.]

The court must address the offender's present "serious difficulty with control over dangerous sexual behavior." Id. at 132-33. To commit or continue to commit the individual to the STU, the State must establish, by clear and convincing evidence, that it is highly likely that the individual will reoffend. Id. at 133-34; see also R.F., supra, 217 N.J. at 173.

The trial court correctly applied these standards to the evidence adduced at the 2013 review hearing. The testimony of both of the State's experts clearly demonstrates that appellant continues to have mental abnormalities that pose a serious danger that he will sexually reoffend if released. The trial court had the prerogative as fact-finder to find the expert testimony of Dr. Canataro and Dr. Voskanian more credible than that of Dr. Lorah. Where qualified experts present opposing opinions on disputed issues, the trier of fact may accept the testimony or opinion of one expert and reject the other. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). This principle flows out of the well-known proposition that jurors, or a judge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a feel for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (internal quotation marks omitted).

As the Supreme Court recently emphasized in R.F., the scope of appellate review of judgments in SVPA commitment cases is "extremely narrow." R.F., supra, 217 N.J. at 174 (internal citations omitted). "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)). On appeal, we must give deference to the judicial findings from the commitment hearings, not only in recognition of the SVPA judge's expertise, but also because the judge has "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)).

An appellate court should not modify the SVPA trial judge's determination either to commit or release an individual "unless the record reveals a clear mistake." Id. 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 are fully consistent with the law governing SVPA matters.

Affirmed.

1 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. Dec. 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. Jan. 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. Aug. 6, 2013).

2 See In re Commitment of W.Z., 173 N.J. 109 (2002).

3 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument.