IN THE MATER OF THE CIVIL COMMITMENT OF S.A. (SVP-779-18, ESSEX COUNTY AND STATEWDIE) (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NOT FOR PUBLICATION WITHOUT THE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-2621-18T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF S.A.,
SVP-779-18.
_____________________________
Argued May 14, 2019 – Decided May 29, 2019
Before Judges Fisher, Hoffman and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-779-18.
Joan D. Van Pelt, Designated Counsel, argued the cause
for appellant S.A. (Joseph E. Krakora, Public Defender,
attorney).
Nicholas Logothetis, Deputy Attorney General, argued
the cause for respondent State of New Jersey (Gurbir S.
Grewal, Attorney General, attorney).
PER CURIAM
Appellant S.A. appeals the judgment that civilly committed him to the
Special Treatment Unit (STU) as a sexually violent predator under the Sexually
Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm the
judgment.
From 1997 and 1998, appellant sexually assaulted five children—all of
whom were male and between the ages of six and fifteen—by performing oral
sex on the victims without their consent, having them perform oral sex on him,
and exposing himself and masturbating in front of them. He was twenty-three
or twenty-four when he committed these offenses. Appellant was charged in
Pennsylvania where the offenses occurred with five counts of involuntary
deviate sexual intercourse and the corruption of minors.
After appellant's arrest in Pennsylvania, a parent in New Jersey alerted the
Hamilton Township police that appellant may have sexually abused her son.
Investigation revealed that between 1994 to 1996, appellant sexually assaulted
five male children, ages eight to thirteen, by forcing his victims to perform oral
sex, performing oral sex on them, watching X-rated movies, and masturbating
with or in front of them. Appellant was charged with four counts each of first-
degree aggravated sexual assault and second-degree sexual assault; two counts
of endangering the welfare of a child; two counts of fourth-degree criminal
sexual contact; and one count of third-degree endangerment.
In 1998, appellant pleaded guilty to the charges in Pennsylvania where he
was sentenced to a term of seven years and six months to twenty-five years in
prison. In July 2004, appellant pleaded guilty in New Jersey to two counts of
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second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of third-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4. He was sentenced
to a ten-year term at the Avenel Adult Diagnostic Treatment Center (ADTC) on
the sexual assault counts and a five-year concurrent term on the endangerment
count, also to be served at ADTC. The New Jersey sentences were consecutive
to the sentence he was serving in Pennsylvania. He was sentenced to comply
with all Megan's Law 1 requirements.
Appellant completed a treatment program for sex offenders while
incarcerated in Pennsylvania. In January 2012, when appellant completed his
sentence in Pennsylvania, he was transferred to ADTC to serve his New Jersey
sentence, where he also participated in sex offender specific treatment. In
January 2018, the State petitioned to civilly commit appellant under the SVPA.
He was temporarily committed to STU.
Dr. Indira Cidambi, a psychiatrist, interviewed appellant twice in 2018.
She testified at the SVPA civil commitment hearing that she diagnosed appellant
with three disorders: "pedophilic disorder, non-exclusive type, attracted to
males"; "other specified personality disorder"; and "schizoaffective disorder."
1
N.J.S.A. 2C:7-1 to -23.
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She testified that both the pedophilic disorder and personality disorder
predispose appellant to sexual reoffending.
Dr. Cidambi testified about appellant's underlying offenses in
Pennsylvania and New Jersey. Appellant acknowledged to Dr. Cidambi that he
committed offenses by manipulating and grooming his victims. The July 2017
treatment summary report from ADTC that Dr. Cidambi relied on in forming her
opinion indicated that after seven years of treatment there, appellant's insights
were "superficial." The report said appellant continued to try to exert influence
over the younger inmates by buying them food and other items.
Dr. Cidambi testified that appellant scored a two on the Static-99R,2 which
put him "in an average risk category of sex offenders." She thought the score
was an underestimate, however, when combined with dynamic risk factors. Dr.
Cidambi testified that despite years of sex offender treatment, appellant still did
not have a depth of understanding; "he is not able to explain his deviancy . . .
he's still struggling." She explained he "has poor self-regulation, which is seen
through the behavior at the ADTC, sexually acting out, [and] poor cognitive
2
"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 Revised-2003 5 (2003)).
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problem solving skills." In her opinion, appellant would be "highly likely . . .
to reoffend if he is not . . . confined to a structured environment such as STU."
She stated in her report that his "lack of volitional control is not only evidenced
in his sexual crimes in the community, but also his continued impulsive sexual
actions while incarcerated." She concluded his "propensity to sexually re-offend
has not been significantly mitigated."
Dr. Eugene Dunaev, a psychologist, conducted a forensic evaluation of
appellant while at STU and prepared a report. He testified that appellant had a
large number of victims in two different states; there was a high frequency of
sexual abuse; he used some victims to entice others; and the abuse lasted for
several years. Dr. Dunaev concluded this was a "lifestyle that [appellant]
developed in the community," meaning that he looked for new victims.
Appellant demonstrated "impulsivity and also the kind of long, thought out
predatory pattern of looking for new victims." His victims were between six
and fifteen, meaning that appellant was a fixated pedophile. He focused his life
"on having sexual activity with children." According to the doctor, he was able
to "groom and manipulate the children" and also was "able to circumnavigate
the adults and the family, and hide his sexual abuse from them."
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After years in treatment in Pennsylvania and at the ADTC, Dr. Dunaev
reported that appellant denied sexual attraction to young boys even though that
was his history. He also reviewed appellant's ADTC treatment records. These
suggested appellant was "emotionally unstable," "impulsive" and had "poor
judgment," and that his engagement with treatment at ADTC was "superficial."
Appellant's PCL-R3 score indicated a moderate range of psychopathy that,
according to Dr. Dunaev, meant he is "a person who deceives." The Stable-
20074 test scored in the "high range of dynamic treatment needs." Dr. Dunaev
testified that the Static-99 score of two undervalued appellant's risk.
Based on his clinical interview with appellant, Dr. Dunaev testified that
appellant was either withholding information about his offenses or trying to "get
over" on those assessing him. He still had some "distortions" regarding his
victims, because appellant expressed to the doctor that they felt "cared for" by
him, or their "grades went up," or one boy "stopped wetting the bed."
3
"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).
4
The Stable-2007 is an actuarial instrument used to assess dynamic risk factors
that can change over time. Kevin Baldwin, Sex Offender Risk Assessment, Sex
Offender Management Assessment and Planning Initiative 2-3 (July 2015),
https://www.smart.gov/pdfs/SexOffenderRiskAssessment.pdf.
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Dr. Dunaev diagnosed appellant with "pedophilic disorder, sexually
attracted to males, non-exclusive type" that he said "predisposes him to commit
sexually violent acts." He also diagnosed appellant with an "other specified
personality disorder (with antisocial features)." In combination, the disorders
created a lifestyle that focuses "largely on sexual impulses." He was
manipulative and able to hide his actions for years; he also was manipulative at
ADTC, which "confirmed" the doctor's diagnosis of a personality disorder.
Appellant was diagnosed with "schizoaffective disorder," although by itself this
did not predispose him to commit sexually violent acts.
Dr. Dunaev testified that "when [the disorders] come together, they make
[appellant] highly likely to engage in sexual violence in the community."
Although appellant consistently attended all his programs in Pennsylvania and
at ADTC, and voluntarily enrolled in sex offender specific treatment at STU,
Dr. Dunaev concluded that appellant "tends to minimize things. He changes his
story, so that is a concern and could be a treatment block whether he is doing
treatment here or on the outside in an outpatient setting." Dr. Dunaev testified
that appellant is "highly likely to sexually reoffend in the community" if he were
released. Factors that supported his conclusion included appellants "sexual
deviance, anti-social traits, as well as serious mental illness."
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Dr. Daniel Greenfield, a psychiatrist, performed a forensic evaluation and
prepared a report for appellant. He testified that "from a clinical perspective
. . . [appellant] could safely be discharged with a good treatment . . . and follow-
up plan and monitoring in place, and would not be highly likely to reoffend
sexually . . . ." He diagnosed appellant with "pedophilic disorder exclusive type
(males) [and] schizoaffective disorder," but not with "other specified personality
disorder." Neither disorder "predisposed" appellant to "commit crimes of sexual
violence." Dr. Dunaev testified that appellant is "highly likely to sexually
reoffend in the community" if he were released. Factors that led Dr. Greenfield
to conclude appellant was not likely to reoffend included appellant's
intelligence, his current age (then forty-four), the lack of an alcohol or drug
problem, the stability of his psychotic level disorder, and low scores on the
various tests.
In his view, appellant would be highly likely to comply with conditions
of release because he is "not as impulsive as he used to be." Dr. Greenfield
discounted the ADTC treatment summary in forming his opinion because its
"description of what [appellant] did was so vague." He thought appellant
"largely learned his lesson and . . . is not likely to re-engage in those kinds of
protean behaviors if he were released." At the same time, he testified "it would
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be an incredible mistake just to discharge him with no treatment plan and no
monitoring and no nothing. That would be a guaranteed disaster." The doctor
suggested a structured discharge plan that included furloughs to determine if
appellant could apply the interventions he learned from treatment when he is in
the community.
The court held that appellant met the criteria for civil commitment under
the SVPA. It found that appellant was convicted of sexual offenses against
multiple prepubescent victims in New Jersey and Pennsylvania, and that these
offenses spanned more than a two-year period. Appellant manipulated the adults
to gain access to the children. While incarcerated, appellant received sex
offender treatment in Pennsylvania and in New Jersey, but his treatment was
"very superficial" because he did not do the necessary work, even though
intellectually he had the capacity. The court concluded "the treatment effect
[was] very minor." He has been in STU since 2018 and that minor treatment
effect has "continued right on through here."
The court reviewed the evidence and testimony of the expert witnesses.
He concluded that Dr. Cidambi and Dr. Dunaev were credible witnesses. The
court found, based on their testimony, that there was clear and convincing
evidence appellant "suffers from pedophilia" and that "predisposes him to sexual
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violence." The court also found appellant had "serious difficulty controlling his
sexually violent behavior," he presently "is highly likely to sexually reoffend"
and would need additional treatment. The court also found that Dr. Greenfield
was credible but disagreed with him about whether appellant was highly likely
to reoffend.
Appellant appeals his civil commitment under the SVPA. He contends
the court erred in finding that he was highly likely to reoffend because of his
years of sex offender treatment and the fact that he now is forty-four years old.
He contends the court erred by relying on the ADTC treatment summary as
substantive evidence. This was the sole issue raised at oral argument .
Our scope of review of judgments in SVPA commitment cases 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)). "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. (quoting State v. Johnson, 42 N.J.
146, 161 (1964)). "Accordingly, an appellate court should not modify a trial
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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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597
(2009).
Involuntary civil commitment under the SVPA can follow an offender's
completion of a custodial sentence. Three requirements must be satisfied to
classify a person as a sexually violent predator: (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.'" R.F., 217 N.J. at 173
(quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)); see N.J.S.A.
30:4-27.26.
The SVPA defines "mental abnormality" as "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.
The mental abnormality or personality disorder "must affect an individual's
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ability to control his or her sexually harmful conduct." W.Z., 173 N.J. at 127.
A showing of an impaired ability to control sexually dangerous behavior will
suffice to prove a mental abnormality. See id. at 129; see also R.F., 217 N.J. at
173-74.
At an SVPA commitment hearing, the State has the burden of proving the
offender poses a threat "to the health and safety of others because of the
likelihood of his or her engaging in sexually violent acts." W.Z., 173 N.J. at
132. "[T]he State must prove that threat by demonstrating that the individual
has serious difficulty in controlling sexually harmful behavior such that it is
highly likely that he or she will not control his or her sexually violent behavior
and will reoffend." Ibid.
There was ample evidence to support the court's finding that appellant
should be civilly committed to STU under the SVPA because all the required
elements were proven. Appellant was convicted of sexually violent offenses
under the SVPA based on his conviction in New Jersey of second-degree sexual
assault. See N.J.S.A. 30:4-27.26. His convictions were based on his sexual
assaults on young boys aged six to fifteen for more than a two-year period.
All the doctors diagnosed appellant with a pedophilic disorder. The court
credited the State doctors' testimony that found appellant also suffered from a
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personality disorder, and that the two disorders, in combination, predisposed
appellant to reoffend in a sexually violent manner within the meaning of the
SVPA. Dr. Greenfield did not find that appellant had a personality disorder, but
the court was permitted to agree with one expert over another. See Angel v.
Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961)
(recognizing the fact-finder's prerogative to accept the opinions of certain
testifying experts and to reject competing opinions of an opposing expert).
The record supported the court's conclusion that appellant's mental
abnormality or personality disorder makes it highly likely that he will not control
his sexually violent behavior and will reoffend. All the doctors formed their
opinions based on their interviews, testing and review of the records that
included the ADTC treatment summary. This record was admitted in evidence
without objection. The records supported the conclusions of Drs. Cidambi and
Dunaev that appellant's understanding of his offending dynamic and relapse
prevention concepts were "superficial" although he had been in treatment for
twenty years. He continued to show manipulative behavior. Both doctors
concluded, based on their interviews and records, that he was highly likely to
reoffend as a result of his psychiatric disorders.
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A trial judge in an SVPA commitment hearing may consider hearsay in
order to assess the credibility of expert testimony, if the expert has based his
opinion on such evidence and the evidence is "of a type reasonably relied upon
by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of
A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted
to rely upon hearsay information in forming an opinion with respect to an
individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J.
Super. 599, 612 (App. Div. 2003) (citing State v. Eatman, 340 N.J. Super. 295,
302 (App. Div. 2001)). The judge may not consider such hearsay statements as
substantive evidence unless the statements come within an exception to the
hearsay rule. See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56
(App. Div. 2004). We are satisfied from our review of the record that the judges
adhered to these principles in rendering their decisions in this case. The
pertinent query is whether "the opinion ultimately rendered . . . is that of the
witness based on his or her own evaluation of the committee, prior offenses, and
objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473,
492 (App. Div. 2005).
The record here is clear that Drs. Cidambi and Dunaev formed their own
opinions based on an assessment of information of the type relied upon by
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experts in their field. The court's reference to the ADTC report was made in
evaluating the credibility of the expert witnesses and not as substantive
evidence.
Dr. Greenfield did not recommend appellant's immediate release without
further planning and conditions. He did not detail what that would entail. He
did not address the Stable-2007, which showed high results. Where there was
substantial evidence in the record, the court was permitted to credit the opinions
of the other experts, who concluded that appellant should be civilly committed
because he meets the definition under the SVPA of a sexually violent predator
and is highly likely to reoffend if released. Accordingly, there is no basis for
reversal on this record.
Affirmed.
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