IN THE MATTER OF THE CIVIL COMMITMENT OF N.W SVP-279-02
Annotate this CaseRECORD 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NOT FOR PUBLICATION WITHOUT THE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-3236-16T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF N.W.,
SVP-279-02.
______________________
Argued August 29, 2018 – Decided October 16, 2018
Before Judges Alvarez and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-279-02.
Susan Remis Silver, Assistant Deputy Public Defender,
argued the cause for appellant N.W. (Joseph E.
Krakora, Public Defender, attorney; Susan Remis
Silver, of counsel and on the briefs).
Mark D. McNally, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Mark D. McNally, on the
brief).
PER CURIAM
N.W., born March 1982, appeals from the February 23, 2017 Law
Division order continuing his civil commitment to the Special Treatment Unit
(STU), the secure facility designated for the custody, care, and treatment of
sexually violent predators, pursuant to the Sexually Violent Predator Act
(SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
An involuntary civil 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. We need not recount N.W.'s past history of sexually
violent conduct and aberrational sexual behavior, the circumstances of his
original admission to the STU in 2002, or his record of infractions while
institutionalized. They are recounted at length in our prior opinions. See In re
Civil Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004), certif.
denied, 182 N.J. 429 (2005); In re Civil Commitment of N.W., No. A-4937-05
(App. Div. Jan. 22, 2007); In re Civil Commitment of N.M.W., No. A-4610-06
(App. Div. Nov. 15, 2007), certif. denied, 195 N.J. 418 (2008); In re Civil
Commitment of N.M.W., No. A-4434-07 (App. Div. Nov. 18, 2008); In re Civil
Commitment of N.M.W., No. A-4405-08 (App. Div. Jan. 8, 2010); In re Civil
Commitment of N.M.W., No. A-3882-09 (App. Div. Dec. 17, 2010); In re Civil
A-3236-16T5
2
Commitment of N.M.W., No. A-4102-11 (App. Div. Aug. 15, 2012); and In re
Civil Commitment of N.M.W., No. A-3516-12 (App. Div. Nov. 25, 2013).
Suffice it to say that we have already determined, as the law of the case,
that N.W.'s 2000 conviction falls within the statutory definition of a sexually
violent offense under N.J.S.A. 30:4-27.26. See State v. Reldan, 100 N.J. 187,
203 (1985) (reciting elements of the law of the case doctrine). To summarize,
that conviction stemmed from N.W. brutally beating and sexually assaulting a
thirty-four-year-old woman at gunpoint by forcible vaginal intercourse on
December 22, 1997, when he was fifteen-years-old. After waiver to adult
criminal court, N.W. pled guilty to the sexual assault and was sentenced to a
five-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
As part of the plea agreement, the State dismissed the remaining counts of the
indictment, which included a charge that later that same day, N.W. robbed and
sexually assaulted a thirty-six-year-old woman at gunpoint by forcing her to
have vaginal intercourse and oral sex.
Prior to his incarceration, N.W. had an extensive juvenile history
beginning at age thirteen and consisting of at least twelve arrests for non-sexual
offenses, three arrests for sexual offenses involving two male and two female
A-3236-16T5
3
adolescent victims, 1 and three adjudications of delinquency. While incarcerated,
N.W. received numerous disciplinary infractions, several of which were violent
and sex related. In 2002, shortly before N.W.'s scheduled release date, the
State's petition for civil commitment under the SVPA was granted. N.W. has
been confined at the STU since that time and has been placed on "modified
activities program" (MAP) 2 status several times due to inappropriate sexual
behavior involving exhibitionism and masturbation. Since his initial
commitment, he has had multiple annual review hearings, all of which have
resulted in judicial findings, by clear and convincing evidence, that N.W.
remains afflicted with mental abnormalities that make it highly likely that he
will commit sexually violent offenses if released into the community.
The present appeal arises out of the review hearing conducted by Judge
James F. Mulvihill on February 23, 2017. At the hearing, the State presented
expert testimony from Indra Cidambi, M.D., a psychiatrist who conducted a
forensic psychiatric evaluation, including an interview of N.W. on February 7,
1
The sex offense charges were ultimately dismissed.
2
MAP, a component of the clinical treatment program at the STU that focuses
on stabilizing disruptive or dangerous behaviors, is a behavior-related treatment
modality. M.X.L. v. N.J. Dept. of Human Servs./N.J. Dept. of Corrs., 379 N.J.
Super. 37, 45 (App. Div. 2005).
A-3236-16T5
4
2017, and Zachary Yeoman, Psy.D., a psychologist and member of the STU's
Treatment Progress Review Committee (TPRC) that conducted N.W.'s annual
review. N.W. presented expert testimony from Christopher P. Lorah, Ph.D., a
psychologist who interviewed N.W. on February 8, 2017. The experts' reports
as well as various treatment notes relied upon by the experts in formulating their
opinions were also admitted into evidence.
Both Cidambi and Yeoman opined that N.W. suffered from a mental
abnormality or personality disorder, which predisposed him to sexually
reoffend. They diagnosed N.W. with other specified paraphilic disorder (non-
consent; provisional), exhibitionistic disorder, antisocial personality disorder,
cannabis use disorder, and alcohol use disorder. They testified that the
combination of antisocial personality disorder, sexual pathologies, and
substance abuse increased the risk of reoffending. They opined that these
conditions do not spontaneously remit but affect N.W. emotionally, cognitively,
and volitionally so as to predispose him to sexually reoffend.
Cidambi and Yeoman determined that N.W.'s Static-99R3 score was eight,
which indicated a high risk for reoffending. Yeoman also determined that
3
"The Static-99 is an actuarial test used to estimate the probability of sexually
violent recidivism in adult males previously convicted of sexually violent
A-3236-16T5
5
N.W.'s Stable 2007 score was fourteen, which "place[d] him in the high range
of dynamic risk." 4 Additionally, Yeoman reported that N.W. scored "a prorated
score of 24.4" on the Psychopathy Checklist-Revised, 2nd Edition (PCL-R),5
which was "at the upper threshold of the moderate range of psychopathy."
Yeoman explained that "while he [did] not officially meet the diagnostic criteria,
he[] [is] . . . on the border of the moderate or high range," which indicated "that
relative to other sexual offenders, [N.W.] appear[ed] to be a well above average
risk for recidivism."
In discussing N.W.'s sexual offending history, Cidambi acknowledged
that N.W. only admitted to his index offense against the thirty-four-year-old
offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing
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.'" Ibid. (quoting In re Commitment of
R.S., 173 N.J. 134, 137 (2002)).
4
The Stable-2007 is another risk assessment instrument developed to help
predict recidivism in sexual offenders.
5
The PCL-R provides a dimensional score that represents the extent to which a
given individual is judged to match the "prototypical psychopath." The cut -off
score on the PCL-R indicative of psychopathy is 30. Thus, an individual who
receives a score of 30 or above on the PCL-R meets the diagnostic criteria for
psychopathy.
A-3236-16T5
6
woman and denied the other sex offenses, which were all dismissed. On cross -
examination, she conceded the possibility that the charges were dismissed
because the incidents never occurred. She explained, however, that she
considered the dismissed charges because "the spectrum of victims . . . raise[d]
concern" and "the fact that he ha[d] been charged [was] important" in assessing
risk.6 Yeoman testified that during his interview with N.W., N.W. provided a
different account of his sexual offending history than he had historically
reported. According to Yeoman, while N.W. denied any sexual intent, he
acknowledged "some sort of inappropriate sexual acts."
Cidambi testified that additional significant factors in evaluating N.W.
included the fact that N.W.'s non-sexual offenses began at an early age, showing
that he did not have "a healthy . . . lifestyle," as well as the trauma N.W.
experienced at an early age in foster care when he was sexually abused by both
of his foster parents. Yeoman testified that N.W.'s history of abuse resulted in
him feeling that no one "cared about him," and, in turn, "he did[] [not] really
care about himself."
6
Notably, Lorah also testified that although "cases that are dismissed hold less
weight[,] [t]hey still hold weight . . . ."
A-3236-16T5
7
According to Cidambi and Yeoman, because N.W.'s disorders do not
spontaneously remit, the impulses caused by the disorders could only be
controlled through treatment. Cidambi testified that although N.W. had been at
the STU since 2002, he only "started engaging in treatment in a meaningful way"
in 2015 and "just got promoted to Phase 3A as of January of [2017]." 7 Yeoman
testified that the recommendation to advance N.W. to Phase 3 was based on
N.W. "restrain[ing] himself enough to meaningfully engage in the core aspects
of treatment[,] . . . restraining his sexual behavior, his impulsive behavior, and
taking a bit more responsibility for his own actions, and beginning to
meaningfully address the myriad of dynamic risk factors that he presents."
After recounting his institutional infractions for both sexual and non-
sexual offenses, which resulted in MAP placements over the years, Cidambi
testified that after N.W. was removed from MAP on December 7, 2015, he
started making progress in treatment by "gaining [an] understanding of his
arousal and behavioral controls . . . ." Nonetheless, according to Cidambi, as
recently as November 2016, his treatment notes indicated "that he still presented
7
According to Cidambi, N.W. had been "stagnant" in Phase 2 for over ten years.
Cidambi described Phase 2 as the early stage of treatment, requiring a minimal
level of commitment to treatment, as opposed to Phase 1, which was intended
for individuals who have no interest in or are refusing treatment.
A-3236-16T5
8
as emotionally disregulated, [and] quite impulsive" and "managed . . . stress by
using sexual behaviors." Specifically, N.W. admitted that he still had deviant
thoughts while staring at female staff members, and reported making numerous
obscene phone calls, and masturbating three times a day. Yeoman testified,
however, that "within the last . . . five months[,]" N.W.'s behavior abated
somewhat and he reported "masturbating one to two times a week."
Cidambi opined that, at this time, N.W. had not had sufficient treatment
to control the impulses caused by his disorders in order "to mitigate his risk
factor." According to Cidambi, N.W. was in the elementary stages of treatment
and had not yet presented his sexual assault cycle, explored his deviant arousal,
or demonstrated an understanding of the factors behind his sexual assaults or his
cognitive distortions. Cidambi testified that N.W. "has to learn [his] sexual
assault cycle and relapse prevention techniques" in order to be able to "mitigate
any of his risk factor[s]." Cidambi concluded that N.W. would have serious
difficulty controlling his sexual offending behavior if released at this time and
"would be highly likely to reoffend if he is not being monitored in a structured
environment such as [the] STU."
Likewise, Yeoman testified that "there [had] not been sufficient treatment
effect yet to reduce [N.W.] below the threshold of highly likely" and he
A-3236-16T5
9
"believe[d] [N.W.] would be highly likely to sexually reoffend" in the
foreseeable future if not committed to the STU for further treatment. In
formulating his opinion, Yeoman considered N.W.'s "static" and "dynamic risk,
and overall treatment effect." According to Yeoman, his static and dynamic
risks were both "in the high range" because he has "demonstrated a variety of
concerning behaviors in the community and since he[] [has] been incarcerated
and committed." Yeoman stated that "[w]hile those [behaviors] are beginning
to change, he[] [has] not done enough yet to . . . reduce his dynamic risk
sufficiently." Acknowledging that "his overall negative emotionality has
decreased somewhat," Yeoman testified that N.W. "need[ed] to continue to
adequately address his sexual offenses to better understand his dynamics, his
cycle, and the important relapse prevention strategies that will help him manage
that cycle and manage his risk."
In contrast, Lorah opined that N.W. was currently less than highly likely
to commit acts of sexual violence in the foreseeable future if released from the
STU. While Lorah disagreed with the State's experts' diagnosis of paraphilia
not otherwise specified, he agreed with the exhibitionistic disorder diagnosis.
However, he opined that the "disorder [was] a predisposing condition for sexual
crimes, not necessarily sexually violent crimes." He also diagnosed N.W. with
A-3236-16T5
10
post-traumatic stress disorder in relation to him "surviving sexual abuse as a
child."
Lorah agreed with the State's experts on N.W.'s Static-99 score, and
acknowledged that N.W.'s record of institutional infractions over the years
demonstrated that his adjustment to structural settings was "[v]ery poor."
However, Lorah explained that N.W. "made significant behavioral changes"
over "the past [twelve] to [eighteen] months" and believed that N.W.'s
"behavioral stability" was "noteworthy." According to Lorah, "the fact that
[N.W.] has engaged treatment to such a great degree, that . . . he was able to
discuss his offense cycle, . . . some risk factors, some relapse prevention
techniques, [and] victim empathy" demonstrated that "he [was] able to articulate
treatment goals," and "consume treatment concepts regardless of his level of
participation." Acknowledging that "there [was] more work to be done," Lorah
"believe[d] that [N.W.'s] needs [could] . . . be met adequately and sufficiently
in the community through a conditional discharge process, monitored heavily
by [t]he probation department and by the courts."
In an oral decision rendered immediately after the hearing, Judge
Mulvihill found by "clear and convincing evidence" that N.W. had been
convicted of a qualifying sexually violent offense under N.J.S.A. 30:4-27.26.
A-3236-16T5
11
The judge also found "by clear and convincing evidence" that N.W. "suffer[ed]
from a mental abnormality, personality disorder [that] does not spontaneously
remit[]" and "[a]ffects him emotionally, cognitively, [and] volitionally."
Further, the judge found by "clear and convincing evidence" that N.W. was
"predisposed to sexual violence," has "serious difficulty controlling his sexually
violent behavior," and was "highly likely to sexually reoffend" if released.
In rendering his decision, the judge found both of the State's experts
credible, describing them as "forthright" and "knowledgeable," and made
findings consistent with their testimony and reports. In contrast, Judge
Mulvihill did not find the defense expert's testimony to be "credible in any way,
shape, or form." The judge explained that it is "somewhat Pollyannaish to
believe that" N.W. was ready to be discharged when he was "just at the
beginning of the core phase of treatment," despite the fact that he has now
"expressed to Dr. Lorah that he understands all the dynamics of [his] sexual
offending and his relapse prevention . . . ." In rejecting Lorah's opinion that
N.W. was not highly likely to sexually reoffend and was "ready to be
conditionally discharged," Judge Mulvihill determined that Lorah's opinion was
"at variance with reality and at variance with the other experts." This appeal
followed.
A-3236-16T5
12
On appeal, N.W. raises the following points for our consideration:
POINT I
THIS COURT MUST REVERSE N.W[.]'S
RECOMMITMENT ORDER SINCE IT WAS BASED
ON INADMISSIBLE AND UNRELIABLE
HEARSAY.
POINT II
THE TRIAL JUDGE CLEARLY ERRED WHEN HE
ASSESSED N.W.'S RISK OF REOFFENDING
WITHOUT CONSIDERING THAT N.W. HAD
GAINED CONTROL OVER HIS SEXUALLY
ASSAULTIVE BEHAVIOR THROUGH
SUCCESSFUL TREATMENT AT THE STU.
"The scope of appellate 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. (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).
"The definition of 'sexually violent predator' requires proof of past sexually
violent behavior through its precondition of a 'sexually violent offense,'" which,
A-3236-16T5
13
in N.W.'s case, is undisputed. Ibid. It also requires that the person "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 required "mental condition must affect [the] individual's ability to
control his or her sexually harmful conduct." Ibid. "Inherent in some diagnoses
will be sexual compulsivity (i.e., paraphilia)," but, "the diagnosis of each
sexually violent predator susceptible to civil commitment need not include a
diagnosis of 'sexual compulsion.'" Id. at 129.
The same standard that supports the initial involuntary commitment of a
sex offender under the SVPA applies to the annual review hearing. In re Civil
Commitment of E.D., 183 N.J. 536, 550-51 (2005). 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." Id. at 551. (quoting W.Z., 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., 217 N.J. at 174 (alterations in original) (quoting
D.C., 146 N.J. at 61). Furthermore, "an appellate court should not modify a trial
A-3236-16T5
14
court's determination either to commit or release an individual unless 'the record
reveals a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J. at 58).
We find no clear mistake in this record and are satisfied that the record
amply supports Judge Mulvihill's findings. We reject N.W.'s argument that the
judge erred in overruling his objection to hearsay testimony offered by the
States' experts concerning "alleged sex offenses that were dismissed and that
N.W. never admitted to committing." An expert is permitted to rely on hearsay
information in forming an opinion concerning the committee's mental condition
for purposes of civil commitment under the SVPA, particularly where, as here,
the information was "of a type reasonably relied upon by experts in the particular
field" and defense counsel was permitted to cross-examine the expert on the
weight accorded to the dismissed offenses. In re Civil Commitment of J.H.M.,
367 N.J. Super. 599, 612 (App. Div. 2003) (quoting N.J.R.E. 703). While the
judge may not consider such hearsay information as substantive evidence unless
an exception to the hearsay rule applies, In re Commitment of G.G.N., 372 N.J.
Super. 42, 56 (App. Div. 2004), we are satisfied from our review of the record
that Judge Mulvihill adhered to these principles in rendering his decision and
reject N.W.'s contentions to the contrary.
A-3236-16T5
15
We also reject N.W.'s contention that the judge erred in re-committing
N.W. "without properly considering his current mental state" and "treatment"
effect. Based on credible expert testimony, the judge determined that N.W.'s
psychological and personality disorders, polysubstance abuse disorder, past
behavior, and treatment progress demonstrated that he was highly likely to
engage in acts of sexual violence unless confined. The judge's determination,
to which we owe the "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), was proper.
Affirmed.
A-3236-16T5
16
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
