IN THE MATTER OF THE CIVIL COMMITMENT OF A.G. (SVP-114-00, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-5932-17T5
IN THE MATTER OF THE
CIVIL COMMITMENT OF
A.G., SVP-114-00.
Submitted September 10, 2019 – Decided September 25, 2019
Before Judges Fisher and Accurso.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-114-
00.
Joseph E. Krakora, Public Defender, attorney for
appellant A.G. (Susan Remis Silver, Assistant Deputy
Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey (Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, Deputy Attorney General, on the brief).
PER CURIAM
A.G. is civilly committed to the Special Treatment Unit (STU), the
secure custodial facility designated for the treatment of persons in need of
commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-
27.24 to -27.38. He appeals from the June 6, 2018 order of the Law Division
continuing his commitment after an annual review required by N.J.S.A. 30:4-
27.35, claiming the judge violated his right to a fair trial by "repeatedly
interrupting" his expert and counsel. He also claims the judge erred by relying
on the State's doctors' inadmissible net opinions of risk of re-offense,
misstating the record underlying one of the expert's opinions, and finding A.G.
has not engaged in drug or sex offender treatment and would not do so if
discharged. We find no merit in those arguments and affirm.
A.G. is fifty-eight years old and has been civilly committed to the STU
for nineteen years. His first conviction occurred in 1982, when he was twenty-
one. A.G. sexually attacked a stranger on the street at 4:00 a.m. Police
responded to the young woman's screams, and he was arrested at the scene.
The victim claimed A.G. said "he would kill her," if she did not stop
screaming. A.G. was convicted of first-degree aggravated sexual assault, as
well as resisting arrest and first-degree aggravated assault on a police officer,
and sentenced to an aggregate term of eight years in State prison.
Five years after his release, A.G. committed the predicate offense of
second-degree sexual assault while the victim lay unconscious in her
boyfriend's bed. When the victim's boyfriend awoke, A.G. threatened to kill
A-5932-17T5
2
him if he called the police. A.G. was sentenced to ten years in prison for that
offense, with a five-year parole disqualifier.
A.G. was committed to the STU in 2000 following a hearing at which
the State proved by clear and convincing evidence that he had been convicted
of a sexually violent offense, he suffered from a mental abnormality or
personality disorder, and such abnormality or disorder made it "highly likely"
A.G. would "'not control his . . . sexually violent behavior and will reoffend.'"
In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (quoting In re
Commitment of W.Z., 173 N.J. 109, 130 (2002)). We have affirmed A.G.'s
continued commitment in five prior opinions encompassing seven prior
appeals. In re Civil Commitment of A.Z.G., No. A-3048-14 (App. Div. Dec.
1, 2015); In re Civil Commitment of A.Z.G., No. A-0158-13 (App. Div. May
28, 2014); In re Civil Commitment of A.G., No. A-4356-05 (App. Div. Nov.
21, 2006); In re Civil Commitment of A.Z.G., No. A-3231-04 (App. Div. Oct.
17, 2005); and In re Civil Commitment of A.Z.G., Nos. A-1587-02, A-3386-
02, A-3506-03 (App. Div. June 21, 2004). 1
1
Our 2005 opinion notes that residents of the STU without a middle name are
assigned a middle initial of "X" or "Z," explaining the different captions
involving this same individual. See A.Z.G., No. A-3231-04 (slip op. at 2 n.1).
A-5932-17T5
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At his most recent review hearing in 2018, the State presented the
testimony of a psychiatrist, Dr. Roger Harris, as well as a psychologist and
member of the STU's Treatment Progress Review Committee, Dr. Eugene
Dunaev. Both doctors diagnosed A.G. with Other Specified Paraphilic
Disorder, coercion or nonconsent; Antisocial Personality Disorder, with Dr.
Dunaev adding Antisocial and Narcissistic Traits; and Alcohol, Cannabis or
Stimulant Abuse Disorder in a controlled setting. Both doctors testified those
disorders do not spontaneously remit and noted A.G. scored a four, "an above
average risk to sexually offend" on the Static-99R.2 Both testified A.G. was
highly likely to reoffend.
Important to both the State's witnesses with regard to A.G.'s continuing
need for commitment was his repetitive rule-breaking while at the STU and his
failure to meaningfully engage in treatment. Dr. Dunaev testified A.G. was
placed on MAP (modified activity placement) three times in the last two years
2
"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." R.F., 217 N.J. at 164 n.9 (citing Andrew Harris et al.,
Static-99 Coding Rules Revised-2003 5 (2003)). The 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)).
A-5932-17T5
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alone for possession of contraband, and that one of his main treatment
roadblocks is his "arrogance and grandiosity." He also testified A.G. is "rigid
and sensitive," and does not take well to feedback in treatment.
Dr. Dunaev testified A.G. "wouldn't take responsibility for having
contraband" and felt he didn't deserve being placed on MAP. Dr. Dunaev
explained that when A.G. feels "wronged" in that way it "sets him back
emotionally. Dysregulates. That's where his entitlement comes out. He
becomes more impulsive," and "more verbally . . . oppositional in group."
Asked what connection that had to A.G.'s likelihood to sexually reoffend, Dr.
Dunaev explained
those things . . . tap into his antisocial features,
antisocial and psychopathic features that he presents,
particularly the entitlement, his difficulty with taking
responsibility, his history of irresponsibility, history
of impulsivity, and also lifestyle instability. It
highlights those areas of antisocial and psychopathic
personality are still quite alive and quite — they're
here, and they're . . . calling his name. So he still has
plenty of criminogenic needs that he wants to fulfill.
Dr. Harris also testified A.G.'s "attitude and behaviors, his poor self-
regulation, his poor judgment, his antisocial attitudes and behaviors increase
his risk to sexually reoffend." Although A.G. acknowledged that both his
victims were unconscious when he penetrated them, he maintained "that
A-5932-17T5
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rendering the woman unconscious was not part of his arousal pattern." Dr.
Harris testified the circumstances of those crimes "clearly indicate[] that
coercion and an individual who is incapacitated is part of [A.G.'s] arousal
pattern." Confronted on cross-examination with the report he offered in 2000
on behalf of A.G. at his initial commitment hearing that A.G. did not have a
paraphilic disorder and "does not have deviant arousal," Dr. Harris explained
that in coming to that opinion that A.G. did not "meet the criteria for a sexual
disorder," he "relied heavily on [A.G.'s] self-report" that both crimes involved
only consensual sex.
Dr. Barry Zakireh, a psychologist, testified on behalf of A.G. that he
suffered from Other Specified Personality Disorder, with antisocial traits and
multiple substance abuse disorders. Although Dr. Zakireh testified he
considered the diagnosis of Other Specified Paraphilic Disorder with non-
consensual features, he determined there was insufficient "evidence for [him]
to distinguish [A.G.'s] acts of rape . . . from an individual that is primarily
opportunistic and antisocial and commits rapes as opposed to one that is
paraphilic and is specifically aroused almost in a preferential and persistent
manner to non-consensual situations."
A-5932-17T5
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Dr. Zakireh acknowledged that A.G.'s "response to treatment perhaps
overall hasn't been stellar," but concluded "treatment has had at least a
modest" positive effect. He also testified one does not "have to be perfect in
treatment in order to lower their risk to sexually reoffend" and that "the risk
could be lowered just by developmental factors, or changes that occur with or
without their full intention." Dr. Zakireh concluded A.G. was not "highly
likely to reoffend" and "would say that he's far, far below that threshold."
Based on the testimony of the State's expert witnesses as well as his
review of the documentary evidence in the record, Judge Freedman found "the
only thing that's changed here is that [A.G.] is a little older" than at his last
review. The judge had no difficulty finding the State proved by clear and
convincing evidence "that [A.G.] does, in fact, suffer from a mental
abnormality in the form of a paraphilia and substance abuse disorders, and a
personality disorder," and that those "conditions predispose him to engage in
acts of sexual violence" such that "he would in fact have serious difficulty
controlling his sexually violent behavior" if released and "would within the
reasonably foreseeable future be . . . highly likely to engage in acts of sexual
violence." The judge rejected A.G.'s expert's opinion to the contrary, finding it
not supported by the evidence in the record.
A-5932-17T5
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Judge Freedman noted A.G. had done "almost nothing to mitigate his
risk" with regard to either drug treatment or efforts "to understand his sex
offending," and found his age, standing alone, had not "reduced his risk below
highly likely." The judge concluded based on his "review of this entire file at
length," that "despite the passage of time" since A.G's offenses and taking into
account "the nature of his offenses, the involvement of his antisociality, his
drug and alcohol use, as well as his paraphilia," that he remained "a dangerous
person."
"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)). Because judges who hear SVPA cases have special expertise in the
area, their decisions are entitled to special deference. Ibid. We will "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 disagree with A.G. that the trial judge deprived him of a fair trial by
interrupting his expert and counsel. Having reviewed the transcript, we find
only a knowledgeable and well-prepared judge engaging the expert and
counsel on relevant issues of interest to the judge, sitting as the fact-finder.
A-5932-17T5
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We expect a judge in a non-jury trial to actively test an expert's views, see
N.J.R.E. 614, and note the judge did so with each of the experts testifying at
the hearing. We likewise find no merit to A.G.'s argument that the State's
experts relied only on inadmissible net opinions in concluding A.G. was at
high risk to reoffend, having recently rejected the nearly identical argument in
In re Commitment of A.Y., 458 N.J. Super. 147, 168-73 (App. Div. 2019)
(finding the opinions of the State's experts were "based on a comprehensive
review of data and information of the type relied upon by others in their
scientific community, including the MnSOST-R and Static-99R actuarial
instruments").
A.G.'s remaining arguments on appeal reduce to quarrels with the judge's
fact-finding which we are simply in no position to reject. See Seidman v.
Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). Having concluded Judge
Freedman's decision to continue A.G.'s commitment is amply supported by
substantial, credible evidence in the record, we affirm substantially for the
reasons expressed in his thorough and thoughtful opinion from the bench on
June 6, 2018.
Affirmed.
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