IN THE MATTER OF THE CIVIL COMMITMENT OF P.P.

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                             NOT FOR PUBLICATION WITHOUT THE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-5509-18T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
P.P., SVP-711-15.
_______________________

                Submitted October 19, 2020 – Decided February 1, 2021

                Before Judges Hoffman and Smith.

                On appeal from the Superior Court of New Jersey,
                Law Division, Essex County, Docket No. SVP-711-
                15.

                Joseph E. Krakora, Public Defender, attorney for
                appellant P.P. (Patrick Madden, Assistant Deputy
                Public Defender, of counsel and on the brief).

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

PER CURIAM

      P.P., a resident committed under the Sexually Violent Predators Act,

appeals from a judgment continuing his involuntary commitment to the Special

Treatment Unit (STU), the secure custodial facility designated for the
treatment of persons in need of commitment pursuant to the New Jersey

Sexually Violent Predator Act (SVPA),  N.J.S.A. 30:4-27.24 to -27.38. For the

reasons set forth below, we affirm.

                                        I.

       On January 13, 2015, the State petitioned for civil commitment of P.P.

under the SVPA. On June 6, 2018, a judge ordered P.P. committed to the

STU.    During P.P.'s annual review hearing on June 28, 2019, the State

produced two expert witnesses, Dr. Alberto Goldwaser, a psychiatrist, and Dr.

Eugene Dunaev, a psychologist. P.P. testified at the hearing but offered no

expert witness testimony.

       Dr. Goldwaser diagnosed P.P. with other specified paraphilic disorder

(non-consent, non-exclusive; underage adolescent girls/manifestations of

hebephilic   disorder),   antisocial   personality   disorder   (ASPD),    and     a

"provisional diagnosis" of pedophilic disorder.            However, the judge

disregarded Dr. Goldwaser's ASPD diagnosis, because the doctor failed to cite

any diagnosis of conduct disorder before age fifteen, a required element for

ASPD.

       Dr. Goldwaser opined that P.P. is at high risk to reoffend in the

foreseeable future. Based on static and dynamic factors, Dr. Goldwaser gave



                                                                          A-5509-18T5
                                         2
P.P. a Static-99R1 score of seven. He testified this score placed P.P. "well

above average" for reoffending.         Dr. Goldwaser also testified that he

considered certain dynamic factors which support his opinion that P.P. would

likely reoffend. One dynamic factor highlighted by Dr. Goldwaser was P.P.'s

inability to obey rules.    As an example, the doctor cited P.P. improperly

possessing a cell phone while confined at the STU.                An additional

consideration for Dr. Goldwaser in reaching his opinion was P.P.'s stated

belief that he did not need to learn relapse prevention skills.

      Dr. Dunaev also testified for the State.       Dr. Dunaev served on the

Treatment Progress Review Committee (TPRC) at the STU.               The doctor

testified that P.P. had three primary issues: difficulty learning in treatment,

difficulty learning from supervision, and difficulty learning from punishment.

      Dr. Dunaev diagnosed P.P. with other specified paraphilic disorder with

hebephilic and pedophilic traits, as well as other specified personality disorder

with antisocial and narcissistic features. The doctor opined that P.P. had not

received enough treatment to warrant release. He gave P.P. a Static-99R score

of five. The doctor testified people in this category have issues with self-


1
   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).
                                                                        A-5509-18T5
                                         3
regulation, emotional regulation, and sexual issues.        He testified P.P.'s

dynamic issues include poor cognitive problem solving, negative response to

supervision and treatment, social rejection issues, lack of concern for others,

impulsivity, and issues with deviant sexual interests.             Dr. Dunaev

characterized P.P.'s risk to reoffend in the foreseeable future as high, based on

P.P.'s static and dynamic factors.

      The judge found the two experts credible, and noted their testimony was

uncontroverted. The judge did not find P.P. credible. He also found "there

[was] insufficient evidence to justify" Dr. Goldwaser's antisocial personality

disorder diagnosis. He further found the State proved by clear and convincing

evidence that P.P. would have "serious difficulty controlling his sexually

violent behavior" and would be highly likely to engage in acts of sexual

violence in the reasonably foreseeable future. Ultimately, the judge denied

release and continued P.P.'s involuntary commitment, and this appeal

followed.

                                        II.

      On appeal P.P. raises two points for our consideration.

                                     POINT ONE

            THE TRIAL COURT ERRED IN ASSISTING AND
            THEN CREDITING THE PSYCHIATRIST FOR THE
            STATE.

                                                                         A-5509-18T5
                                         4
                                    POINT TWO

            THE STATE FAILIED TO SHOW BY CLEAR AND
            CONVINCING EVIDENCE THAT P.P. WAS
            HIGHLY LIKELY TO COMMIT A SEXUALLY
            VIOLENT OFFENSE IN THE FORSEEABLE
            FUTURE.


      "The scope of appellate review of a commitment determination is

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

(quoting In re D.C.,  146 N.J. 31, 58 (1996)). The trial judge's decision is owed

the utmost deference, and the appellate court should only modify where the

record reveals a clear abuse of discretion. In re J.P.,  339 N.J. Super. 443, 459

(App. Div. 2001) (citing State v. Fields,  77 N.J. 282, 311 (1978)); see also

R.F.,  217 N.J. at 175 ("An appellate court should not overturn a trial court's

findings because it might have reached a different conclusion were it the trial

tribunal or because the trial court decided all evidence or inference conflicts in

favor of one side in a close case"). We owe a trial judge's decision the utmost

deference because they hear and see the witness and have "a feel of the case,

which a reviewing court cannot enjoy." R.F.,  217 N.J. at 174 (2014) (quoting

State v. Johnson,  42 N.J. 146, 161 (1964)). Further, "[t]he 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
                                                                      A-5509-18T5
                                         5
T.J.N.,  390 N.J. Super. 218, 226 (App. Div. 2007)). "A trial judge is 'not

required to accept all or any part of [an] expert opinion.'" Ibid. (quoting D.C.,

 146 N.J. at 58).

      "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).      "The appropriate inquiry is to

canvass the significant amount of expert testimony in the record and determine

whether the lower courts' findings were clearly erroneous." D.C.,  146 N.J. at
 58-59 (citing Fields,  77 N.J. at 311). Thus, "[s]o long as the trial court's

findings are supported by 'sufficient credible evidence present in the record,'

those findings should not be disturbed."      R.F.,  217 N.J. at 175 (quoting

Johnson,  42 N.J. at 162).

      "The Legislature enacted the SVPA to protect other members of society

from the danger posed by sexually violent predators." In re Commitment of

J.M.B.,  197 N.J. 563, 570-71 (2009) (citing  N.J.S.A. 30:4-27.25). Thus, the

SVPA allows the State to involuntarily commit a sexually violent offender

who "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."    R.F.,  217 N.J. at 173 (quoting

 N.J.S.A. 30:4-27.26).

                                                                        A-5509-18T5
                                       6
      To involuntarily commit a person under the SVPA,

            the State must establish three elements: (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

            [Ibid. (citing In re Commitment of W.Z.,  173 N.J. 109,
            130 (2002)).]

      The State has the burden of proving each element by clear and

convincing evidence. Ibid. "Clear and convincing evidence is evidence that

produces 'a firm belief or conviction' that the allegations are true; it is evidence

that is 'so clear, direct and weighty and convincing' that the factfinder can

'come to a clear conviction' of the truth without hesitancy." Ibid. (quoting In

re Jobes,  108 N.J. 394, 407 (1987)).

      Under the SVPA, 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."  N.J.S.A. 30:4-

27.26. Further, although personality disorder is not defined, under the SVPA,

a personality disorder must affect the individual's ability to control sexually

harmful conduct. See W.Z.,  173 N.J. at 127. To meet this standard, "the State

must prove that the alleged predator's 'propensity to commit acts of sexual

violence is of such a degree as to pose a threat to the health and safety of
                                                                    A-5509-18T5
                                     7
others.'" In re Civil Commitment of A.H.B.,  386 N.J. Super. 16, 24 (App. Div.

2006) (quoting  N.J.S.A. 30:4-27.26).

      Further, the SVPA requires that, as a result of the mental abnormality or

personality disorder, the person must be likely to "engage in acts of sexual

violence if not confined in a secure facility for control, care and treatment. "

W.Z.,  173 N.J. at 120 (quoting  N.J.S.A. 30:4-27.26). The Court has construed

the phrase "likely to engage in acts of sexual violence" to mean that the State

must prove "it is highly likely that he or she will not control his or her sexually

violent behavior and will reoffend". Id. at 132.

      Moreover, the State must offer testimony on a person's involuntary

commitment from expert witnesses at a review hearing. Under the SVPA, "a

psychiatrist on the person's treatment team who has conducted a personal

examination of the person shall testify at the hearing to the clinical basis for

the need for involuntary commitment."  N.J.S.A. 30:4-27.30.  N.J.S.A. 30:4-

27.26 defines "treatment team" as "individuals, agencies or firms which

provide treatment, supervision or other services at a facility designated for the

custody, care and treatment of sexually violent predators." A.H.B.,  386 N.J.

Super. at 25 (quoting  N.J.S.A. 30:4-27.26).

      Finally, a person committed under the SVPA must receive an annual

review hearing to determine whether they will be released.  N.J.S.A. 30:4-

                                                                          A-5509-18T5
                                        8
27.35. The State retains the burden of proving the evidence by clear and

convincing evidence; however, "an individual should be released when a court

is convinced that he or she will not have serious difficulty controlling sexually

violent behavior and will be highly likely to comply with [a] plan for safe

reintegration into the community." W.Z.,  173 N.J. at 130.

                                      III.

      Adhering to our "extremely narrow scope of review", R.F.,  217 N.J. at
 174 (citing D.C.,  146 N.J. at 58), we affirm.

      P.P. argues that the judge erred in assisting and then crediting the

psychiatrist for the State. P.P. correctly states that Dr. Goldwaser's diagnosis

of ASPD is unsupported in the record. There was no evidence of conduct

disorder before P.P. turned fifteen years old. Next, P.P. argues that the judge

relied upon Dr. Goldwaser's unsupported ASPD diagnosis in reaching his

decision. Armed with this incorrect assumption, P.P. argues that the State

failed to meet its burden of producing competent expert testimony at the

hearing. This argument fails where the hearing judge rejected Dr. Goldwaser's

testimony on ASPD and did not rely upon that portion of the doctor's opinion.

The judge is "not required to accept all or any part" of Dr. Goldwaser's expert

opinion. Ibid. (quoting D.C.,  146 N.J. at 58).



                                                                         A-5509-18T5
                                       9
      However, the State produced other credible and competent medical

expert opinions, including medically supported diagnoses of Dr. Goldwaser as

well as expert testimony of Dr. Dunaev. P.P. produced no expert witness to

contradict the State's experts. Dr. Goldwaser and Dr. Duneav both diagnosed

P.P. with other specified paraphilic disorder. They each testified that this

disorder predisposed him to reoffend. After canvassing the expert testimony in

this record, we see no findings by the judge that are "clearly erroneous". D.C.,

 146 N.J. at 58-59. (citing Fields,  77 N.J. at 311).

      Next, P.P. argues that the State failed to show by clear and convincing

evidence that P.P. was highly likely to commit a sexually violent offense in the

foreseeable future.     P.P. points to Dr. Goldwaser's unsupported ASPD

diagnoses, P.P.'s lack of problematic behavior while he was a resident and his

efforts in treatment. P.P. also argues he was cooperative in group sessions and

participated productively, openly discussing his past and refraining from

disruption. We disagree.

      There is "sufficient credible evidence" to support the judge's findings.

R.F.,  217 N.J. at 175 (quoting Johnson,  42 N.J. at 162). Both doctors gave

opinions regarding P.P.'s probability to re-offend in the reasonably foreseeable

future. Dr. Goldwaser believed P.P.'s chances to re-offend are very high. Dr.

Goldwaser's opinion was based on static and dynamic test factor results. One

                                                                       A-5509-18T5
                                        10
of the dynamic factors, a lack of ability to obey the rules in the community or

in STU, stood out to the expert. Finally, Dr. Goldwaser noted that P.P. himself

did not believe he needed to learn relapse prevention skills, a belief Dr.

Goldwaser opined increased P.P.'s risk to re-offend.

      Dr. Dunaev was of the opinion that P.P. was a high risk to reoffend in

the foreseeable future. The doctor found P.P. only saw the world from his

point of view, had continual problems with complying with supervision and

treatment, had poor cognitive problem-solving skills, was impulsive, and had a

lack of concern for others. Further, Dr. Dunaev found P.P will "never comply

with the STU's conditional discharge process" because P.P. does not believe in

it.

      The judge properly considered the uncontroverted expert opinions, while

specifically rejecting the unsupported aspect of Dr. Goldwaser's opinion. We

are satisfied the judge's finding that the State proved its case for P.P.'s

continued involuntary commitment by clear and convincing evidence is

"supported by 'sufficient credible evidence present in the record,' and that [his]

findings should not be disturbed." Ibid. (quoting Johnson,  42 N.J. at 162).

      Affirmed.




                                                                         A-5509-18T5
                                       11