IN THE MATTER OF THE CIVIL COMMITMENT OF W.W.

RECORD 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                             NOT FOR PUBLICATION WITHOUT THE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-2972-18T5

IN THE MATTER OF THE
CIVIL COMMITMENT
OF W.W., SVP-86-00.
________________________

                 Submitted December 4, 2019 – Decided December 17, 2019

                 Before Judges Mayer and Enright.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Essex County, Docket No. SVP-86-00.

                 Joseph E. Krakora, Public Defender, attorney for
                 appellant W.W. (Susan Remis Silver, Assistant Deputy
                 Public Defender, on the brief).

                 Gurbir S. Grewal, Attorney General, attorney for
                 respondent State of New Jersey (Melissa H. Raksa,
                 Assistant Attorney General, of counsel; Nicholas
                 Logothetis, Deputy Attorney General, on the brief).

PER CURIAM

       Appellant W.W., who is now seventy-two years old, appeals from a

January 28, 2019 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 committed pursuant to the Sexually

Violent Predator Act (SVPA),  N.J.S.A. 30:4-27.24 to -27.38.          We affirm,

substantially for the reasons stated by Judge Philip M. Freedman in his

comprehensive and thoughtful oral decision.

       W.W.'s commitment to the STU dates back to 2000, following his

conviction for sexual assault of a five-year old girl over the course of several

months in 1993. W.W. admitted to police that he fondled the girl's breasts and

vaginal area, performed cunnilingus on her and masturbated in his pants. He

pled guilty to sexual assault in June 1995 and was sentenced to a seven-year

prison term. After he served approximately four years of this sentence, the State

petitioned to civilly commit him under the SVPA and on October 27, 2000, a

judgment was entered civilly committing W.W. to the STU.

       During his commitment, W.W. revealed a longstanding history of

exhibitionism, voyeurism, and stalking behavior. He reported he had driven

naked in his car and fantasized about picking up a young female child to molest.

Further, while undergoing treatment, he disclosed three additional unreported

victims. Specifically, he admitted that when he was nineteen, after bouncing a

young girl on his knee, he became aroused and later masturbated to thoughts of

her.


                                                                         A-2972-18T5
                                       2
      At age twenty-seven, W.W. exposed and stroked his penis after he had his

neighbor's five- to eight-year old daughter "lay down on the living room floor

with her back towards" him. W.W. admitted he "was going to touch [the child],

but her brothers knocked on the door." W.W. acknowledged he "wanted [the

child] to stroke [his penis]."

      At the age of forty-three, W.W. fondled the chest of another young girl

while they were in church. He later masturbated to thoughts of her.

      By 2011, W.W. was deemed to be a low actuarial risk for sexually

reoffending and was recommended for a furlough plan. After his furloughs

began in June 2011, he submitted to a polygraph examination to address his

recent masturbatory fantasies. His polygraph results were flagged for deception

based on answers he gave during the exam. W.W. revealed he masturbated to

thoughts of a little girl he saw in a mall while on furlough. Further, he disclosed

he fantasized for years about sexualizing an underage girl.        Consequently,

W.W.'s furloughs were terminated in 2012.

      In October 2018, W.W. conceded he no longer felt ready to return to the

community and that he was not progressing in treatment. He estimated he had

a fifty percent chance of reoffending.       During this time period, while in

treatment, he participated in a role-playing event where he imagined himself in


                                                                           A-2972-18T5
                                        3
a house with two children. He was observed by staff to be visibly aroused during

this role-playing exercise. Then, in November 2018, he disclosed masturbating

to a deviant fantasy of a seven year old girl. His treatment providers confirmed

that in December 2018, W.W. admitted "managing my arousal is the only thing

I'm not good at," and there is "stuff I don't want you to know about."

      An involuntary civil commitment can follow service of a sentence, or

other criminal disposition, for "a sexually violent offense," including sexual

assault, 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.

      SVPA committees are afforded annual review hearings to determine the

need for continued involuntary commitment.  N.J.S.A. 30:4-27.35. If "the legal

standard for commitment no longer exists," then "the committee is subject to

release." In re Civil Commitment of E.D.,  353 N.J. Super. 450, 455 (App. Div.

2002); see also In re Commitment of W.Z.,  173 N.J. 109, 132-33 (2002). Thus,

an order of continued commitment under the SVPA, like an initial order, must

be based upon "clear and convincing evidence that the individual has serious

difficulty controlling his or her harmful sexual behavior such that it is highly


                                                                         A-2972-18T5
                                       4
likely that the person will not control his or her sexually violent behavior and

will reoffend."   W.Z.,  173 N.J. at 133-34.       The court must address the

committee's "present serious difficulty with control over dangerous sexual

behavior" because the "annual court review hearings on the need for continued

involuntary commitment" require assessment of "fresh information concerning

the committee's dangerousness." W.Z.,  173 N.J. at 132-33. When a committee

has been determined to be a "sexually violent predator," as defined by  N.J.S.A.

30:4-27.26, that determination is binding and continues in full force and effect.

Thus, the State is not required to reprove the committee is a sexually violent

predator at his review hearing.

      Consistent with  N.J.S.A. 30:4-27.24, Judge Freedman conducted a two-

day review hearing for W.W. in January 2019. The State presented two expert

witnesses at the review hearing: Dr. Marta Scott, a psychiatrist, and Dr. Jamie

Canataro, a psychologist and member of the Treatment Progress Review

Committee (TPRC) at the STU. Both experts were qualified to render their

opinions and their reports were received in evidence. W.W. did not testify or

present any witnesses at the review hearing.

      On the first day of the review hearing, Dr. Scott confirmed she conducted

a forensic evaluation of W.W., which included an interview with him. She


                                                                         A-2972-18T5
                                       5
opined, within a reasonable degree of medical certainty, that W.W.'s "risk to

commit another contact sexual offense does not reach the threshold of highly

likely." She determined W.W.'s risk of reoffense could be successfully managed

with a conditional discharge plan and "gradual de-escalation of restraints." She

based her findings, in part, on W.W.'s score of a "-2" on the Static-99R,1 noting

his risk fell in the low range. Still, Dr. Scott's report acknowledged this score

might underestimate his risk, "as it does not account for his previous victims."

Dr. Scott added that other risk factors not reflected in W.W.'s Static-99R score

included "early onset of sexual offending, strong paraphilic arousal, multiple

paraphilic interest (history of voyeuristic and masochistic behavior), poor

problem-solving skills, multiple offenses [and] cognitive limitations."

      Under cross-examination, Dr. Scott acknowledged:

            Well, the most important factor I believe that made me
            . . . reach the conclusion I reached is [W.W.'s] age,
            which is [seventy-one], and when it comes to
            interpretation of age on risk of recidivism I think the
            three most important factors that we consider are
            declining sexual drive, increased self control, and
            [decreased] access to victims.


1
  "The Static-99 is an actuarial test used to estimate the probability of sexually
violent recidivism in adult males previously convicted of sexually violent
offenses." In re 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)).


                                                                          A-2972-18T5
                                        6
Regarding W.W.'s declining sex drive, Dr. Scott noted that W.W. continued to

take medication to decrease his sexual urges. Additionally, he reportedly had

abstained from masturbating for several months prior to her evaluation.

      Dr. Canataro testified on the second day of the review hearing. She, too,

interviewed W.W. for her evaluation. She also prepared his annual TPRC

report. Before issuing her report, she considered the written and oral reports of

his treatment team representative, a review of his treatment notes, and all

available discovery material included in W.W.'s STU file.

      Dr. Canataro determined W.W. suffers from mental abnormality or

personality disorder which predisposes him to sexual reoffense. She diagnosed

W.W. with: pedophilic disorder, sexually attracted to females, non-exclusive

type; voyeuristic disorder; sexual masochism disorder; and borderline

intellectual functioning. During her evaluation, Dr. Canataro reviewed various

actuarial instruments and noted W.W.'s Psychopathy Checklist-Revised, 2nd

edition (PCL-R)2 score was 12, which falls in the "low range" of the construct

of psychopathy. Dr. Canataro acknowledged that W.W.'s Static-99R score was


2
  "The PCL-R test is a widely used method to measure psychopathic personality
traits." Trantino v. N.J. State Parole Bd.,  166 N.J. 113, 206 (2001) (Baime, J.,
dissenting). A score of thirty is the cutoff for reliable classification as a
psychopath. Ibid.


                                                                          A-2972-18T5
                                       7
"-2," placing him in "a very low range of sexual recidivism." However, she

noted the Static-99R has moderate accuracy in ranking offenders according to

relative risk for sexual recidivism. Dr. Canataro explained:

            [W]e do know, just from ongoing dynamic risk
            variables, that this . . . is an under representation of
            [W.W.'s] risk. The strength of this deviant arousal,
            despite his advancing age, despite his exposure to and
            participation in treatment, his inability or his
            unwillingness to behaviorally manage this deviant
            arousal, and [the] obsessional quality he can have
            towards victims, even with little or no contact with
            them, so in my opinion, this is . . . not an accurate
            representation of his current risk.

      When asked to characterize W.W.'s risk to sexually reoffend in the

foreseeable future if not recommitted to the STU for further treatment, Dr.

Canataro responded, "[h]igh."       She further opined, "[g]iven his sexual

preoccupation and criminal sexual arousal lead to the sexual assaults on

prepubescent females, this continues to be an area of clinical concern for

[W.W.]" She did not agree with Dr. Scott's determination that W.W. was an

appropriate candidate for a conditional discharge plan.        She specifically

disagreed with the opinion that W.W. was not highly likely to sexually reoffend.

Dr. Canataro noted W.W. was able to "pass a current arousal polygraph in 2018.

But . . . since that time he has begun masturbating to deviant fantasies." In Dr.

Canataro's opinion, "this continued masturbation to deviant fantasies shows . . .

                                                                         A-2972-18T5
                                       8
his continued strength of the deviant arousal, his inability or his unwillingness

to behaviorally manage this arousal pattern." Explaining her disagreement with

Dr. Scott further, she noted "Dr. Scott heavily relies on [W.W.'s] age but age is

not a magic number. The variables we're using when we're looking at age is

we're looking at a decreased sexual drive. I do not see evidence of a decreased

sexual drive in [W.W.]"

      After reviewing the testimony and exhibits submitted, Judge Freedman

rendered an oral decision on January 28, 2019.        He determined both State

witnesses were credible, but "Dr. Canataro . . . has the better half of the

argument." The judge concluded that even though the State was compelled to

produce psychiatric testimony at the review hearing, the State was not bound by

Dr. Scott's testimony. He found the State established by clear and convincing

evidence that W.W. suffers "from a mental abnormality, mental abnormalities

in the form of pedophilic disorder and . . . some other paraphelias, which are

less important with regard to his risk, and that the condition that [W.W.] has

predisposes him to engage in acts of sexual violence." The judge added:

            I think it affects him volitionally and emotionally. It
            does predispose him as his record shows. And I think
            that if –if he were released, given the fact that he has
            very little support in the community and . . . that he has
            an active deviant arousal, which appears to be
            exclusive, that he would have serious difficulties very

                                                                         A-2972-18T5
                                        9
             quickly in controlling his sexually violent behavior and
             would, within - -well within the foreseeable future,
             engage in acts of sexual violence. And so I think he
             needs to continue, his commitment needs to be
             continued.

      In crediting Dr. Canataro's testimony over that of Dr. Scott, the judge

found Dr. Scott relied too heavily on W.W.'s age when addressing whether he

was likely to reoffend. Judge Freedman stated, "[c]onditional discharge is for

people who have undergone treatment and who have - - who have developed

relapse prevention techniques, methods to control their deviant arousal so as to

reduce the risk to the point where they can in fact return to the community."

Judge Freedman noted W.W. "failed relapse prevention . . . which is roleplaying,

three times, and he's failed arousal reconditioning three times."

      Our scope of review of judgments in SVPA commitment cases is

"extremely narrow."       In re Commitment of R.F.,  217 N.J. 152, 174 (2014)

(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)). "We give deference to the findings of our trial

judges because they have the 'opportunity to hear and see the witnesses and to

have the "feel" of the case, which a reviewing court cannot enjoy.'"               Ibid.


                                                                                A-2972-18T5
                                          10
(quoting State v. Johnson,  42 N.J. 146, 161 (1964)). "Accordingly, 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

D.C.,  146 N.J. at 58). "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,  42 N.J. at 162).

         Judge Freedman's decision, when compared to the record on appeal,

commands the special deference afforded to specialist judges who hear SVPA

cases.     We are satisfied his judgment for continued commitment is both

adequately supported by sufficient credible evidence in the record and consistent

with controlling legal principles. To the extent W.W. argues the State failed to

meet its burden because Dr. Scott did not find W.W. is highly likely to sexually

reoffend, we disagree.

         Although Dr. Scott opined W.W. was not highly likely to sexually

reoffend, the trial court is "not required to accept all or any part of" an expert's

opinion. In re Commitment of R.F.,  217 N.J. 152, 174 (quoting In re D.C.,  146 N.J. at 61). The trial court had a reasonable basis to credit the testimony of Dr.

Canataro over the more positive opinions expressed by Dr. Scott. Moreover,

"[t]he ultimate determination [regarding involuntary civil commitment] is 'a


                                                                            A-2972-18T5
                                        11
legal one, not a medical one, even though guided by medical expert testimony.'"

Ibid. (quoting D.C.,  146 N.J. at 59).    Even actuarial information is "simply a

factor to consider, weigh, or even reject, when engaging in the necessary

factfinding under the SVPA." Id. at 164 n.9 (quoting In re Commitment of R.S.,

 173 N.J. 134, 137 (2002)). Accordingly, there is no basis for reversal on this

record.

      W.W.'s remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-2972-18T5
                                        12