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

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NOT FOR PUBLICATION WITHOUT THE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 R.G., SVP-83-00.

_______________________________

December 7, 2015

Argued November 16, 2015 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-83-00.

Molly Cobham McNulty, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Arielle E. Katz, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney).

PER CURIAM

R.G. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

He appeals from the July 22, 2015 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4-27.35. He contends the court erroneously relied on the testimony of evaluators who misinterpreted certain test results and the State failed to prove by clear and convincing evidence that, if released, he is highly likely to commit more acts of sexual violence. We affirm.

R.G. is thirty-five years old and has been committed to the STU since 2000. He pled guilty as a juvenile to three counts of aggravated sexual assault upon three children, ages four, five and seven. He was sixteen at the time. Although he has been committed for fifteen years, R.G. has only recently been recommended to move beyond Phase 2 of his treatment as earlier progress was reversed by his refusal to participate in treatment during 2010 and inappropriate angry and aggressive behavior and a physical altercation in the STU in 2011.

The review hearing at issue here took place on July 21, 2015. The court heard testimony from Dr. Roger Harris, a psychiatrist, Dr. Debra Roquet, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC), and R.G.

Dr. Harris diagnosed R.G. as suffering from Pedophilic Disorder, girls and boys, not exclusive; Post Traumatic Stress Disorder by history; and Antisocial Personality Disorder with paranoid traits. He explained that a person with both Pedophilic Disorder and Antisocial Personality Disorder, who has a history of sexually offending, is at a higher risk of reoffending. The doctor further explained that these disorders do not spontaneously remit, and that R.G. had undergone insufficient treatment so as to be able to adequately control the impulses caused by these disorders.

He testified that R.G. remains a high risk to sexually reoffend, explaining

Although more engaged in treatment, [R.G.'s] discussion of his internal state is troubling. His fantasies of engaging in fights and killing others and in the process, being killed indicates his profound difficulty with his impulsivity, his feeling estranged and the rage he easily experiences, all of which he has not been able to modulate. This is an important treatment issue.

. . . .

In this case, [R.G.] has a strong deviant arousal to children, he has strong antisocial attitudes and behaviors, he has poor problem solving and very poorly self regulates himself.

Dr. Roquet's opinion was similar. She diagnosed R.G. with Pedophilic Disorder, non-exclusive type, sexually attracted to females and males, not limited to incest; Anti-social Personality Disorder, Sexual Sadism, provisional; and Post Traumatic Stress Disorder, by history. Dr. Roquet explained R.G.'s progress in treatment during the review period

[R.G.] re-engaged in treatment I believe in 2013. Last year we reported that his attendance, his participation in really all respects had improved, certainly in comparison with the several years that he was refusing treatment altogether, was very overtly hostile in the treatment orientation group on some occasions. He decided to go back to treatment.

There are still some continuing concerns. He is certainly, as Dr. Harris described at length, very mistrustful of others, including DOC, DHS staff and other residents, but he is able to adequately manage his emotions in group and his behavior in group is adequate. His attendance has continued this year to be good, as it was last year.

He has continued to enroll in modules. This year, as he did last year, he has been taking some core modules, including relapse prevention modules. He hasn't passed everything consistently, but he has done reasonably well. I see that, when I saw him in March, he was he had passed RP-2A, he was enrolled in RP-2B, for example. He has passed a drug and alcohol education module. He had a pass repeat on victim empathy. But I would say, all in all, this is someone who is doing reasonably well in modules.

He was working on revising his personal maintenance contract. Over time and I believe starting from before he went on TR [Treatment Refusal] status, he had a couple of the programmatic requirements, so it looks like he has returned to some focus on this in, as I said, working on his personal maintenance contract.

He took a number of floors in group. Some of these focusing on core sex offender issues. All in all, we when we met with him, we encouraged he stay on track, basically. That was the main thing that we wanted him to do.

R.G. testified on his own behalf, but called no experts. He denied offenses to which he had pled guilty, and testified that if released he would participate in sex offender treatment and try to find employment. He wished to go live with his aunt and would like to be an optician.

Judge Mulvihill found the doctors' testimony credible. Based on the testimony of the State's experts as well as his review of all documentary evidence, the judge found the State had proved by clear and convincing evidence that R.G. suffers from a mental abnormality, which does not spontaneously remit, and were R.G. released he would have serious difficulty controlling his sexually violent behavior and would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence.

On appeal, R.G. contends the State's experts placed too much weight on actuarial instruments designed for use with adults and failed to prove by clear and convincing evidence that, if released, he is highly likely to commit more acts of sexual violence. We reject these arguments.

The SVPA authorizes the Attorney General to initiate court proceedings for involuntary commitment of sexually violent predators. N.J.S.A. 30:4-27.28. Sexually violent predators include persons "who ha[ve] been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and suffer[] from a mental abnormality or personality disorder that makes [them] 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.

Thus, to have a person committed under the SVPA, the State must prove by clear and convincing evidence three elements: the person has been convicted of a sexually violent offense; the person suffers from a mental abnormality or personality disorder; and, as a result of such mental abnormality or personality disorder, "'it is highly likely that the [person] will not control his or her sexually violent behavior and will reoffend.'" In re Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)).1 A person who has been involuntarily committed under the SVPA is entitled to annual review hearings to determine whether he or she remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32a.

Because judges who hear SVPA cases are specialists with expertise in the subject, their decisions are entitled to special deference. R.F., supra, 217 N.J. at 174. In addition, the SVPA judges "'hear and see the witnesses and . . . have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). For those reasons, "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 In re D.C., 146 N.J. 31, 58 (1996)). "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).

Applying those standards here, we are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence in the record. The limitations on the actuarial testing referenced by the experts, including the Static-99R,2 were thoroughly addressed on cross-examination. The judge certainly was not misled in any way by the experts' testimony about the instruments they utilized as part of the comprehensive evaluations they undertook of R.G.

Affirmed.

1 The term "sexually violent offense" refers to offenses enumerated in the SVPA, including aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, and "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26. The term "'mental abnormality' means 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.

2 "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). This Court has 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.'" R.F., supra, 217 N.J. at 164 n.9 (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).