IN THE MATTER OF THE CIVIL COMMITMENT OF E.S. SVP-769-17 (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NOT FOR PUBLICATION WITHOUT THE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-2475-17T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF E.S.,
SVP-769-17.
______________________________
Argued September 11, 2019 – Decided October 1, 2019
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-769-17.
Susan Remis Silver, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Remis Silver, on the
briefs).
Stephen J. Slocum, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Stephen J. Slocum, on the brief).
PER CURIAM
E.S. appeals from the trial court's December 26, 2017 order entered
following a review hearing pursuant to N.J.S.A. 30:4-27.32(a), which committed
him to the Department of Human Services Special Treatment Unit (STU) under
the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. E.S.
was adjudicated delinquent of sexual crimes against a minor when he was
fourteen years old. After years of probation and court-ordered sex offender
treatment as a juvenile, and currently as an adult, the State filed a petition to
civilly commit him, which was granted by Judge Philip M. Freedman after a
three-day hearing.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN
QUALIFYING THE TWO STATE DOCTORS WHO
LACKED EXPERTISE IN JUVENILE-ONLY SEX
OFFENDER RISK.
A. DR. PAOLILLO HAS NO EXPERTISE ON THE
JUVENILE BRAIN.
B. DR. PAOLILLO LACKED EXPERTISE ON
SEXUAL RECIDIVISM RATES.
C. DR. PAOLILLO LACKS EXTENSIVE
EXPERIENCE IN ASSESSING THE RISK OF
JUVENILE-ONLY SEX OFFENDERS.
D. THE TRIAL COURT ERRED WHEN IT
QUASHED E.S.'S SUBPOENA.
E. DR. PAOLILLO FAILED TO USE "BEST
PRACTICES" TO ASSESS E.S.
F. DR. PAOLILLO WAS UNFAMILIAR WITH
RELEVANT LITERATURE.
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G. DR. PAOLILLO INAPPROPRIATELY USED
THE SVR-20 TO ASSESS RISK.
H. DR. PAOLILLO MISUSED THE SVR-20 BY
INVENTING HER OWN IDIOSYNCRATIC
SCORING THAT NO ONE HAD EVER
VALIDATED.
I. DR. HARRIS DEMONSTRATED NEITHER
EXPERTISE NOR EXTENSIVE EXPERIENCE IN
ASSESSING JUVENILE-ONLY SEX OFFENDERS
J. DR. HARRIS LACKED EXPERTISE ON THE
APPLICABILITY OF ADULT RISK ASSESSMENT
TOOLS TO JUVENILE-ONLY OFFENDERS.
K. DR. HARRIS GAVE NO EMPIRICAL
SUPPORT FOR RISK FACTORS.
L. DR. HARRIS NEVER DEMONSTRATED ANY
INDEPENDENT KNOWLEDGE ABOUT
JUVENILE-ONLY SEX OFFENDERS SUCH AS E.S.
POINT II: THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT FAILED TO HOLD A
N.J.R.E. 104 HEARING ON WHETHER JUVENILE
SEX OFFENDER RISK ASSESSMENTS ARE
SUFFICIENTLY RELIABLE FOR EXPERT
TESTIMONY.
A. ACTUARIAL ASSESSMENTS ARE NOT
RELIABLE ON JUVENILES.
B. THE TRIAL COURT ERRED WHEN IT HELD
THAT CLINICAL JUDGEMENT ALONE COULD
SUPPORT COMMITMENT BECAUSE THE STATE
FAILED TO PROVE THAT CLINICAL
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JUDGEMENT COULD RELIABLY PREDICT E.S.'S
SEXUAL RECIDIVISM RISK.
C. NO JUDICIAL PRECEDENT SUPPORTS
RELIANCE ON ONLY CLINICAL JUDGEMENT IN
COMMITMENT DECISIONS UNDER THE SVPA.
POINT III: THE TRIAL COURT ERRED WHEN IT
FAILED TO EXCLUDE DR. HARRIS' AND DR.
PAOLILLO'S UNSUPPORTED TESTIMONY AS
NET OPINION.
A. DR. HARRIS OFFERED ONLY NET OPINION
ON E.S.'S RISK.
B. DR. PAOLILLO OFFERED INADMISSIBLE
NET OPINION ON RISK.
POINT IV: THIS COURT SHOULD REVERSE
BECAUSE THE TRIAL COURT FAILED TO
CONSIDER E.S.'S REDUCED RISK AS A
JUVENILE-ONLY OFFENDER.
POINT V: THIS COURT MUST REVERSE
BECAUSE E.S.'S COMMITMENT WAS BASED ON
FALSE INFORMATION ABOUT HIS RECORD.
A. E.S. HAS NO ADJUDICATION OF A SEX
OFFENSE AGAINST M.F.
B. E.S.'S RECORD CONTAINS NO CHARGES
STEMMING FROM HIS BEHAVIOR AT NINE-
YEARS OLD.
C. E.S. WAS NOT ADJUDICATED OF
MULTIPLE CHARGES AGAINST C.F.
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D. THE STATE ASSUMED E.S.'S DISMISSED
CHARGES WERE TRUE.
E. DR. HARRIS AND DR. PAOLILLO
TESTIFIED ABOUT VICTIMS WHO SEEMED TO
BE NONEXISTENT.
POINT VI: E.S.'S COMMITMENT WAS BASED ON
INADMISSIBLE HEARSAY.
We affirm substantially for the reasons set forth in Judge Freedman's
comprehensive eighty-five-page oral opinion. We nonetheless comment on the
facts and arguments raised by E.S.
"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)). Appellate courts "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)). "So
long as the trial court's findings are supported by 'sufficient credible evidence
present in the record,' those findings should not be disturbed." Id. at 175
(quoting Johnson, 42 N.J. at 162).
"The judges who hear SVPA cases generally are 'specialists' and 'their
expertise in the subject' is entitled to 'special deference.'" Id. at 174 (quoting In
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re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).
"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).
E.S., now twenty-two years old, was reported to be involved in several
incidents alleging sexual assault of a child during his youth. Each juvenile
delinquency complaint was eventually dismissed, with the exception of the one
involving the February 2011 incident, which led to his delinquency
adjudication.1
We glean the following information from the hearing and treatment
records discussed by Judge Freedman. In 2005, when he was nine years old,
E.S. admitted he fondled a six-year-old boy. E.S. reported he was "running
around playing having fun" with the boy and "st[uck] his hand down the boy['s]
pants and grabbed the child's penis." This incident was not reported until E.S.
was twelve years old and he was not charged.
1
E.S. also had a number of non-sexual complaints filed against him as a
juvenile, which included charges of: multiple counts of possession of a weapon,
disturbing the peace, aggravated assault, obstruction of arrest, resisting arrest,
and contempt.
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In 2006, when E.S. was nine years old, he was charged several times with
possession of a weapon, which resulted in a deferred disposition.
In June 2008, when he was twelve years old, E.S. was charged with what,
if he had been an adult would constitute: fourth-degree criminal sexual contact
with a ten-year-old girl, N.J.S.A. 2C:14-3(b); third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a); and second-degree sexual assault of the
girl's five-year-old brother, N.J.S.A. 2C:14-2(b). The girl reported they were
playing in a yard when E.S. took her behind some bushes, covered the girl's
mouth while touching her vagina, and told her not to tell anyone. The girl also
reported E.S. had touched her brother in a similar fashion. These charges were
eventually dismissed with a finding that E.S. was incompetent to stand trial.
In July 2010, when he was fourteen years old, E.S. was accused of what,
if an adult would constitute: first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4. A complaint, later filed
on February 25, 2011, alleged E.S. had forced his ten-year-old female cousin to
touch his penis and digitally penetrated her vagina. The charges were eventually
dismissed.
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On February 24, 2011, when he was still fourteen years old, two more
juvenile delinquency complaints were filed against E.S. Each complaint
charged him with, if committed by an adult, would be one count of 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. One complaint described
an incident where E.S. lay on top of his seven-year-old female cousin—the sister
of the girl from the alleged July 2010 incident—and rubbed his penis on her
vagina. The other complaint detailed a second incident where E.S. forced the
same cousin against a wall and rubbed his penis on her rear end. During the
latter incident, the girl's mother intervened and E.S. became enraged and
threatened her. The girl's father, a police officer, also intervened and restrained
E.S. E.S. was adjudicated delinquent on July 12, 2011. He received three years
of probation, was required to register under Megan's Law, N.J.S.A. 2C:7-1 to -
5, and was ordered to a residential placement for sex-offender treatment.
E.S. attended Capital Academy from May 2012 until October 2014, and
was required to participate in sex offender treatment. While at Capital
Academy, E.S. had to be put in physical restraints five times after he failed to
take his medications. E.S. also reportedly attempted to enter a shower with the
intent to rape another resident at the academy, but staff intervened before he
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could do so. Staff also had to intervene during an incident in November 2013,
when E.S. choked himself with a string. E.S. reported it was sexually exciting
for him to be touched by staff members.
E.S. also received two juvenile delinquency complaints on April 10, 2014,
while he was still at Capital Academy. The complaints charged him with what,
if committed by an adult, would be second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); third-degree possession of a weapon, N.J.S.A. 2C:39-4(d); and
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(d). E.S. allegedly
punched one staff employee in the jaw and struck another with a wooden cutting
board. He was removed from Capital Academy based on assault charges and
placed in detention. E.S. was adjudicated delinquent for aggravated assault
pursuant to these complaints. E.S. was adjudicated in violation of his probation
based on the new adjudications. E.S. was then sentenced to four years at a
Juvenile Justice Commission facility in Jamesburg.
While at the facility, E.S. reportedly engaged in "compulsive masturbation
which resulted in injury to his genitalia" and expressed the desire to "physically
assault and rape a resident because he had not had sex in a significant time." He
also was charged with other misbehavior. E.S. voluntarily elected to be
transferred to the Adult Diagnostic & Treatment Center to participate in sex
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offender specific treatment in November 2015. He was then temporarily
committed to the STU pending his civil commitment hearing.
"The SVPA permits the State to involuntarily commit 'a person who has
been convicted . . . of a sexually violent offense' 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).
The SVPA defines the phrase "likely to engage in acts of sexual violence"
as meaning "the propensity of a person to commit acts of sexual violence is of
such a degree as to pose a threat to the health and safety of others." N.J.S.A.
30:4-27.26. "This dangerousness standard differs from that contained within the
general civil commitment statute, N.J.S.A. 30:4–27.2(i), which defines
dangerous as a 'substantial likelihood that the person will inflict se rious bodily
harm upon another person . . . within the reasonably foreseeable future.'" In re
Commitment of W.Z., 339 N.J. Super. 549, 571–72 (App. Div. 2001). 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 use
of the words 'emotional,' 'cognitive,' or 'volitional' "indicates that the Legislature
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intended to insure that every individual who has a substantial inability to
exercise control over sexually violent behavior would be within the Act's reach."
In re Commitment of W.Z., 173 N.J. 109, 129 (2002).
"If the court finds by clear and convincing evidence that the person needs
continued involuntary commitment as a sexually violent predator, it shall issue
an order authorizing the involuntary commitment of the person to a facility
designated for the custody, care and treatment of sexually violent predators."
N.J.S.A. 30:4-27.32(a). In order to classify a person as a sexually violent
predator, the State must prove: (1) "the individual has been convicted of a
sexually violent offense"; (2) the individual "suffers from a mental abnormality
or personality disorder"; and (3) "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 W.Z., 173
N.J. at 130); see also N.J.S.A. 30:4-27.26.
"The experienced judges assigned to hear these cases have the difficult
task of assessing expert testimony that often is in conflict, making factfindings
about events described from varying viewpoints, and ultimately predicting the
probability of a person's future conduct." R.F., 217 N.J. at 156.
A-2475-17T5
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"The final decision whether a person previously convicted of a sexually
violent offense is highly likely to sexually reoffend 'lies with the courts, not the
expertise of psychiatrists and psychologists. Courts must balance society's
interest in protection from harmful conduct against the individual's interest in
personal liberty and autonomy.'" R.F., 217 N.J. at 174 (quoting D.C., 146 N.J.
at 59).
The State called two experienced expert witnesses and E.S. called one
expert. All three testified that E.S. suffered from pedophilia and other mental
disorders. All three agreed as well that the standardized tests used for adult
offenders were not created to evaluate the risk of re-offense of an individual
with a history of juvenile adjudications only. They also agreed that the risk of
re-offense for juvenile-only offenders was significantly lower than for adult
offenders: as low as five percent of juvenile-only sexual offenders reoffend as
adults.
The State's witnesses, however, opined that based on their clinical
evaluations, E.S. was in that small group of juvenile-only offenders highly likely
to sexually reoffend as adults. E.S.'s expert, to the contrary, opined that E.S.
was not likely to reoffend based on statistical probabilities.
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Judge Freedman detailed the many reasons two of the experts found E.S.
highly likely to sexually reoffend, including E.S.'s lengthy history of being
sexually abused as a child; his numerous admitted incidents of sexual acting out;
his serious major mental illnesses including pedophilia, psychosis, personality
disorder, depression and suicidal ideation; and his "[l]ack of realistic plans and
negative attitudes towards intervention." E.S. also has Klinefelter's Syndrome.2
Judge Freedman found that no specific standardized test was deemed appropriate
for the evaluation of juvenile-only offenders, but properly found that he could
assess the likelihood to reoffend based on the experts' well-founded and well-
explained opinions. He found both of the State's experts provided valuable
information and insight into E.S.'s likelihood to reoffend. They both relied on
information in the record routinely used by experts in the field, In re Civil
Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), and did not
render net opinions, see Pomerantz Paper Corp. v. New Community Corp., 207
N.J. 344, 372 (2011) (defining a net opinion as "an expert's bare opinion that
has no support in factual evidence or similar data"). As he stated, Judge
Freedman did not rely on impermissible hearsay in reaching his conclusions.
2
Klinefelter Syndrome is a genetic condition that causes males to be born with
an extra X chromosome. See Stedman's Medical Dictionary 1733 (26th ed.
1995).
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Judge Freedman also acted within his discretion in quashing E.S.'s subpoena
requesting additional background information regarding the qualifications of
one of the State's experts.
Affirmed.
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