IN THE MATTER OF THE CIVIL COMMITMENT OF A.C. (SVP-695-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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-1118-16T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF A.C. SVP 695-15.
______________________________
Submitted July 9, 2018 – Decided August 1, 2018
Before Judges Carroll and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
695-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa H. Raksa, Assistant
Attorney General, of counsel; Stephen J.
Slocum, Deputy Attorney General, on the
brief).
PER CURIAM
A.C. appeals from a March 7, 2016 order of the Law Division,
continuing his 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. For the
reasons that follow, we affirm.
We need not recount in substantial detail A.C.'s prior
criminal history, which dates back to the early 1960s. In sum,
A.C. has an extensive criminal history consisting of sexual and
non-sexual offenses. In 1964, A.C. was charged in Indiana with
sexual assault and assault and battery. He was convicted of
assault and battery, but the record is unclear as to the
disposition of the sexual assault charge. Defendant was thereafter
twice convicted of attempted rape in Indiana in 1967 and 1970.
A.C.'s predicate conviction arose from a November 1979 arrest
for breaking into the home of a seventy-four-year old woman, who
he then sexually assaulted. Following a 1980 jury trial, A.C. was
convicted of first-degree aggravated sexual assault, first-degree
aggravated assault, first-degree robbery, and second-degree
burglary, for which he was sentenced to an aggregate forty-five-
year prison term.
A.C. escaped from prison in 1981 and was not recaptured until
1985. Following a jury trial in 1990, A.C. was convicted of the
escape, and a consecutive fifteen-year prison sentence was
imposed. While incarcerated in state prison, A.C. incurred twenty-
four disciplinary infractions, including refusal to obey,
destroying property, possession of gambling paraphernalia,
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disruptive conduct, refusing work assignments, threatening bodily
harm, and refusing to submit to a search. The most recent
institutional infraction occurred in July 2012.
On November 5, 2014, A.C. was committed to the STU under the
SVPA after serving his sentence. The present appeal arises from
a periodic review of A.C.'s commitment, which was conducted by
Judge James F. Mulvihill on February 18 and March 1, 2016. At the
hearing, the State relied on the expert testimony of psychiatrist
Roger Harris, M.D., and psychologist Tarmeen Sahni, Psy.D., a
member of the STU's Treatment Progress Review Committee (TPRC).
A.C. presented the expert testimony of psychiatrist Michael Kunz,
M.D., and psychologist Gianni Pirelli, Ph.D.
After interviewing A.C. and reviewing previous psychiatric
evaluations, STU treatment records, and related documents, Harris,
Kunz and Pirelli prepared reports, which were admitted into
evidence. Dr. Sahni participated in the TPRC's review of A.C.'s
progress and treatment and authored the TPRC report, which was
also admitted into evidence, as were various other treatment notes
and records.
A.C. was born in 1944, and was seventy-one years old at the
time of the hearing. Notwithstanding A.C.'s age, Dr. Harris
concluded he met the criteria of a sexually violent predator and
was "highly likely to sexually re-offend if placed in a less
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restrictive setting" because he has not mitigated his risk. Dr.
Harris further opined that if A.C. were to be released from the
STU with conditions, he was highly unlikely to comply with those
conditions.
Based on A.C.'s "long history of disregarding the rights of
others," his failure "to conform to social norms," his
"irritab[ility,]" "aggressive[ness,]" "profound reckless
disregard for the safety of others[,]" and "lack of remorse and
being indifferent to the way he has hurt others," Dr. Harris
diagnosed A.C. with severe antisocial personality disorder. Dr.
Harris elaborated that A.C. "maintains the . . . antisocial
attitudes and behaviors that I believe are the nexus for his sexual
offending [and are] alive and well today . . . . I don't think
[A.C.] is that different today at age [seventy-one] than he was
throughout the [1970s] when [he was] sexually offending."
Dr. Sahni testified A.C. had not received "any kind of sex
offender treatment" that would reduce "his risk to sexually offend
. . . ." The TPRC recommended promoting A.C. to Phase 2 of
treatment, which "is considered the beginning phase[] of
treatment[.]" Dr. Sahni noted A.C. "continues to deny and does
not take any responsibility for any of the offenses that he's been
charged with."
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Like Dr. Harris, Dr. Sahni diagnosed A.C. as suffering from
a severe antisocial personality disorder. Additionally, Dr. Sahni
made a provisional diagnosis of paraphilic disorder, explaining
that A.C. "most likely has the disorder, however, there's
insufficient evidence to fully diagnose [him] with such disorder."
A.C. scored a four on the Static-99R,1 placing him in the "moderate
high" risk to sexually reoffend. In accord with Dr. Harris, Dr.
Sahni opined it was: (1) "highly likely" that A.C. would sexually
re-offend in the foreseeable future unless he were confined in a
secure facility for treatment; and (2) "highly unlikely" that A.C.
would comply if he were to be released from the STU with
conditions.
Dr. Kunz initially interviewed A.C. and prepared a report on
behalf of the State, but was ultimately subpoenaed to testify on
behalf of A.C. at the review hearing. Dr. Kunz similarly
determined that A.C. suffered from antisocial personality
disorder. In accordance with the State's experts, Dr. Kunz
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 Revised-2003 5 (2003). [We
have] 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
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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testified "that [A.C.] has fairly consistently denied having
committed any sexual offenses, so in that regard he has not
addressed the offenses."
A.C. also scored a four on the Static-99R administered by Dr.
Kunz, "which place[d] him in a moderate high risk for reoffense."
However, Dr. Kunz noted "the authors of Static-99R advise caution
when using [it] . . . in the age group of over [seventy] because
the predictive ability of this instrument is not as good as it is
in younger age groups." Rather, the advice of the Static-99R
authors "is that the offenders over the age of [seventy] should
be assumed to have low risk."
In contrast to Dr. Sahni, Dr. Kunz did not diagnose A.C. with
paraphilia. Dr. Kunz opined A.C.'s "risk for reoffense is low,"
but nonetheless "it would be prudent to impose whatever conditions
could further decrease [A.C.'s] risk for reoffense." On cross-
examination, Dr. Kunz conceded he was unable to state within a
reasonable degree of medical probability that, if A.C. were
conditionally discharged, he would be highly likely to comply with
the conditions of release.
A.C.'s expert psychologist, Dr. Pirelli, also concluded A.C.
suffers from antisocial personality disorder. Dr. Pirelli was
unable to find A.C. has a paraphilia "at this time," but noted it
6 A-1118-16T5
was "possible by history given [A.C.'s] offense history that he
would have likely met [that] criteria in the past."
According to Dr. Pirelli, A.C.'s age decreased his chances
of sexually offending, which he described as an "extremely rare
event" for individuals, such as A.C., over age seventy. Moreover,
Dr. Pirelli's evaluation revealed nothing about A.C. that would
lead him to depart from that statistical analysis. Similar to Dr.
Kunz, Dr. Pirelli was unable to find, within a reasonable degree
of medical certainty, that A.C. was highly likely to comply with
all conditions of release were that to occur.
In an oral opinion rendered on March 2, 2016, Judge Mulvihill
found Dr. Harris to be a "very credible witness." Likewise, Judge
Mulvihill found Dr. Kunz credible, but disagreed with Dr. Kunz's
assessment "that the aging process has mitigated [A.C.'s] risk."
Rather, the judge found A.C. "has antisocial personality disorder
that's alive and well, and that he's no different than the man he
was back when he last offended. And he denies all of his offenses.
He needs treatment to mitigate his risk." Similarly, while Dr.
Pirelli testified credibly, the judge disagreed with Dr. Pirelli's
testimony that A.C. was not highly likely to reoffend due to his
age.
After recounting the testimony of all four experts, and
detailing A.C.'s criminal and disciplinary history and treatment
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record at the STU, Judge Mulvihill concluded A.C.'s commitment
should continue. The judge found
by clear and convincing evidence [A.C.] has
been convicted of sexual violent offenses,
[and] . . . he continues to suffer mental
abnormality or personality disorder that does
not spontaneously remit, antisocial
personality disorder. And also I find that
there is the paraphilia, at least by history,
and it should be at least a rule out or
provisional, and clear and convincing evidence
that presently he is highly likely to sexually
reoffend if not confined to a secure facility
for control, care, and treatment, that the
antisocial personality disorder affects him
emotionally, cognitively, volitionally, and
predisposes him to sexual violence, he has
serious difficulty controlling his sexual
violent behavior, and I find that he's highly
likely to sexually reoffend at the present
time.
The judge entered a memorializing order continuing A.C.'s
commitment, and this appeal followed.
On appeal, A.C. argues Judge Mulvihill erred in continuing
his civil commitment, and finding he was highly likely to commit
acts of sexual violence in the future. A.C. further contends the
judge's reliance on the testimony of Dr. Harris and Dr. Sahni was
not supported by credible evidence, and that in light of A.C.'s
age, the State's experts failed to prove the required link between
A.C.'s past crimes and his present danger to sexually reoffend.
We reject these arguments and affirm.
8 A-1118-16T5
"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)
(quoting 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 . . . .'"
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).
"[T]he mental condition must affect an 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.
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The same standard that supports the initial involuntary
commitment of a sex offender under the Act applies to the annual
review hearing. See In re Civil Commitment of E.D., 353 N.J.
Super. 450, 452-53 (App. Div. 2002). 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."
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 (second and third alterations in original) (quoting D.C.,
146 N.J. at 61). Furthermore, "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).
We are satisfied from our review of the record that Judge
Mulvihill's findings are supported by substantial credible
evidence. Based on credible expert testimony, the judge determined
that A.C.'s disorders, past behavior, and treatment progress
demonstrated that he was highly likely to engage in acts of sexual
violence unless confined. The judge was not required to accept
the testimony of A.C.'s witnesses that his risk of sexually
10 A-1118-16T5
reoffending was low, especially when both experts were unable to
state with any degree of probability that A.C. would comply with
conditions imposed by the court if he were released back into the
community. Given our limited scope of review, the judge's decision
to continue A.C.'s commitment, 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 (App. Div. 2001),
was proper.
Affirmed.
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