INTHE MATTER OF THE CIVIL COMMITMENT OF M.W., SVP-748-16

 


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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2097-16T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
M.W., SVP-748-16.
________________________

           Submitted May 15, 2018 – Decided July 20, 2018

           Before Judges Fasciale and Sumners.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. SVP-
           748-16.

           Joseph E. Krakora, Public Defender, attorney
           for appellant M.W. (Alison Perrone, Designated
           Counsel, on the brief).

           Gurbir S. Grewal, Attorney General, attorney
           for respondent (Melissa H. Raksa, Assistant
           Attorney General, of counsel; Victoria R. Ply,
           Deputy Attorney General, on the brief).

PER CURIAM

     M.W., twenty-seven years old, appeals from a judgment that

committed him to the Special Treatment Unit (STU), a secure

facility for the treatment of persons in need of involuntary civil

commitment pursuant to the Sexually Violent Predator Act (SVPA),


N.J.S.A. 30:4-27.24 to -27.38.          He contends the State failed to
prove by clear and convincing evidence that he suffers from a

mental abnormality or personality disorder, which makes him highly

likely   to    re-offend   in    the   reasonably    foreseeable   future.

Considering this contention in light of the record and applicable

standards, we affirm.

     An involuntary commitment can follow service of a sentence,

or other criminal disposition, when the offender "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;   see   also   
N.J.S.A.   30:4-27.25.    To    civilly   commit    an

individual, the State must prove by clear and convincing evidence:


           (1) that the individual has been convicted of
           a sexually violent offense; (2) that he
           suffers   from   a  mental    abnormality   or
           personality disorder; and (3) that as a result
           of his psychiatric abnormality or disorder,
           it is highly likely that the individual will
           not control his or her sexually violent
           behavior and will reoffend[.]

           [In re Civil Commitment of R.F., 
217 N.J. 152,
           173 (2014) (citations omitted).]

     The first two elements derive directly from the statute.             In

order to "comport with substantive due process concerns, [the]

Court interpreted the third statutory element as requiring the

State to show that a person is 'highly likely,' not just 'likely,'


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to sexually reoffend."    Ibid.   (quoting In re Commitment of W.Z.,


173 N.J. 109, 130 (2002)).

     To be considered a sexually violent predator, an individual

must have committed a sexually violent offense.      
N.J.S.A. 30:4-

27.26.    Sexual assault is considered a sexually violent offense.

Ibid.    With this legal framework in mind, we will now consider the

facts that led to M.W.'s commitment under the SVPA.

     M.W.'s first sexual offense arose when he was thirteen years

old and charged with criminal sexual contact for grabbing the

breast of a female peer. He was found delinquent of the downgraded

offense of harassment/sexual touching and was placed on one-year

probation.    When he was twenty-one years old, he was adjudicated

delinquent on two counts of aggravated sexual assault: (1) anally

penetrating a six-year-old boy with his penis, and forcing the boy

to perform fellatio on him; and (2) forcing a four-year-old girl

to perform fellatio on him, and anally penetrating her with his

penis and digitally.     A charge of aggravated sexual assault for

rubbing his penis against the buttocks of a four-year-old boy was

dismissed.1    He was given consecutive four-year sentences that




1
   The dismissed charge and the adjudication were for acts that
occurred when M.W. was fifteen years old and sixteen years old,
respectively.

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were suspended upon the condition of completing a residential

placement program and six years of probation.

       Due   to   his   failure    to    report   and   an    extreme    lack    of

cooperation with treatment, M.W.'s probation was revoked and he

was sent to New Jersey Training School for Boys (Training School)

to serve his consecutive four-year sentences.                While incarcerated

and twenty-two years old at the time, he pled guilty to two counts

of criminal sexual contact for exposing his penis to a fourteen-

year-old boy and forcing the boy to touch his penis, and for also

grabbing the boy's penis.2              M.W. was sentenced to consecutive

eighteen-month prison terms.

       The State subsequently filed a petition for involuntary civil

commitment under the SPVA.          Judge Phillip M. Freedman conducted a

two-day commitment hearing at which a psychiatric expert, Alberto

Goldwaser,    M.D.,     and   a   psychological    expert,     Zachary   Yeoman,

Psy.D., testified for the State, and a psychological expert,

Timothy P. Foley, Ph.D., testified on behalf of M.W.                All experts

testified concerning their evaluation of M.W., and their review

of his criminal history and other past evaluation assessments of

M.W.




2
    The separate incidents occurred on consecutive days.

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     According    to   Goldwaser,   M.W.'s   sex   offense   history   with

children – despite admitting to having frequent consensual sex

with peer-aged partners – revealed impulsive offending behavior,

which increases his risk for future sex offenses.3              Goldwaser

discovered M.W. had lived in a revolving door of foster homes

during his youth and that his brother sexually abused him.               He

believed M.W.'s documented history of violence and arson evidenced

his impulsivity and unwillingness to control his behavior.               He

noted M.W.'s juvenile treatment showed little progress in meeting

progress goals.    Goldwaser testified M.W. scored an eight on the

STATIC-99R4 actuarial instrument, but conceded even though others

have considered his score a seven, both scores are within the high

range to reoffend.       Goldwaser found no evidence of attention

deficit/hyperactivity disorder or bipolar disorder as did prior

evaluators.   Instead, based upon M.W.'s conduct and his admission

to a prior evaluator that he was attracted to young boys, Goldwaser


3
   M.W. terminated his initial interview with Goldwaser but fully
participated in a second interview.
4
   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). Our
Supreme 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."
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)).

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rendered a diagnosis of pedophilic disorder, male and female

nonexclusive, which caused him to feel that it was acceptable to

act on impulses to engage in sexual behavior with children.             He

also diagnosed M.W. with antisocial personality disorder (ASPD),

which increases his risk for sexual offenses because it decreases

his ability to control his behavior.         Noting M.W.'s history of

violating probation conditions following his initial delinquency

adjudication, coupled with his lack of appreciation of the benefits

of treatment, Goldwaser opined that unless he is committed to the

STU, he is highly likely to sexually reoffend.

     Yeoman's   testimony   –   although   stating   his   diagnosis   was

reached independent of the other experts – mirrored Goldwaser's

assessments.    M.W. told Yeoman that he could not explain why he

committed his sexual offenses. Yeoman noted that M.W.'s antisocial

behavior was demonstrated by his inability to follow rules and

committing acts of violence and arson.      Yeoman indicated that M.W.

had a non-compliant attitude towards treatment.        Yeoman diagnosed

M.W. with pedophilic disorder and ASPD, the combination of which

predisposed him to sexually violent behavior and affected his

ability to control the behavior.       He also noted the discrepancy

of M.W.'s STATIC-99R score of seven or eight, but found that both

scores indicated a high risk to reoffend.        Yeoman believed that



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the pedophilic disorder was evident in M.W.'s youth and continued

into his adulthood.

      Foley disagreed with the State's experts.                          He opined that

M.W. did not have ASPD – because he never lived in the community

as an adult – nor pedophilic disorder – because it was only evident

in his youth but not currently in is his adulthood.                         Since these

disorders did not exist, Foley stated the STATIC-99R should not

be considered in assessing M.W.'s likelihood to reoffend.                       He also

saw no evidence of bipolar disorder.                    He claimed that the criminal

sexual      contact   committed     in           the    Training     School    was   not

substantial.

      Judge Freedman found the testimony of the State's experts to

be more credible than M.W.'s expert.                    He found the Training School

offense, committed when M.W. was twenty-two years old, was a clear

indication that his deviant sexual behavior was not restricted to

his youth.      The judge found the credible evidence demonstrated

M.W. suffers from the mental abnormality of pedophilic disorder

and   the    personality   disorder          of       ASP;   in   turn   affecting   him

emotionally, cognitively, and volitionally, and predisposing him

to sexual violence, and making him highly likely to reoffend if

not confined in a secure facility.                    He determined M.W.'s "history,

his   unfortunate      upbringing        .        .     .    undoubtedly    contributed

substantially to his conduct and problems . . .                          [and based on]

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his whole record, I don't think there's any question [he] is a

dangerous person."       Consequently, Judge Freedman found that M.W.

was in need of civil commitment, and not a good candidate for a

conditional discharge because the "likelihood of him complying

with the conditions is very low."

      In considering this appeal, our "review of a commitment

determination is extremely narrow." R.F., 
217 N.J. at 174 (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. (citation

omitted).        "The   final   decision     whether    a   person   previously

convicted of a sexually violent offense is highly likely to

sexually reoffend lies with the courts, not the expertise of

psychiatrists and psychologists. Courts must balance society's

interest    in     protection    from       harmful    conduct   against     the

individual's interest in personal liberty and autonomy."                   Ibid.

(citations omitted).         "A trial judge is 'not required to accept

all   or   any   part   of   [an]   expert     opinion[].'       The   ultimate

determination is 'a legal one, not a medical one, even though it

is guided by medical expert testimony.'"               Ibid. (alterations in

original) (quoting D.C., 
146 N.J. at 59, 61). Therefore, we should

not modify the judge's determination "unless 'the record reveals

a clear mistake.'"        Id. at 175 (quoting D.C., 
146 N.J. at 58).

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"So   long   as    the   trial   [judge's]   findings    are   supported        by

'sufficient       credible   evidence   present    in   the   record,'     those

findings should not be disturbed."                Ibid. (quoting State v.

Johnson, 
42 N.J. 146, 162 (1964)).

      Governed by these standards, we discern no basis to disturb

Judge Freedman's decision.          The credible record – documentary

evidence and testimony of Goldwaser and Yeoman – amply support a

finding that M.W. is a sexually violent predator suffering from

pedophilic disorder and ASPD, and he is highly likely to engage

in acts of sexual violence if not confined in a secure facility

for control, care and treatment under the SVPA.

      Affirmed.




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