IN THE MATTER OF THE CIVIL COMMITMENT OF A.Y. SVP-545-09 (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) , 458 N.J. Super. 147 ( 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NOT FOR PUBLICATION WITHOUT THE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-5240-16T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF A.Y.,
SVP-545-09.
____________________________
Submitted January 15, 2019 – Decided February 13, 2019
Before Judges Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-545-09.
Joseph E. Krakora, Public Defender, attorney for
appellant A.Y. (Susan Remis Silver, 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; Victoria R. Ply,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant A.Y. appeals from a Law Division judgment involuntarily
civilly committing him to the Special Treatment Unit (STU) as a sexually violent
predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-
27.24 to -27.38. After reviewing the record in light of the contentions advanced
on appeal, we affirm.
An involuntary civil commitment can follow service of a sentence, or
other criminal disposition, when the offender "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."
N.J.S.A. 30:4-27.26; see also N.J.S.A. 30:4-27.25. To civilly commit an
individual as a sexually violent predator, the State must establish three elements
by clear and convincing evidence:
(1) that the individual has been convicted of a sexually
violent offense, [N.J.S.A. 30:4-27.26]; (2) that he
suffers from a mental abnormality or personality
disorder, ibid.; 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," In re Commitment of
W.Z., 173 N.J. 109, 130 (2002). Although the first two
elements derive directly from the statute, to comport
with substantive due process concerns, [the] Court
interpreted the third statutory element as requiring the
State to show that a person is "highly likely," not just
"likely," to sexually reoffend. Ibid.
[In re Civil Commitment of R.F., 217 N.J. 152, 173
(2014).]
In order to be considered a sexually violent predator, an individual must
have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault
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is considered a sexually violent offense. Ibid. With this legal framework in
mind, we will now consider the facts that led to A.Y.'s commitment under the
SVPA.
We derive the facts from the trial record. A.Y. is now thirty-nine years
old. In February 2006, he pleaded guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(c). His conviction was predicated on the following facts. On
April 11, 2005, A.Y. went to the house of his former girlfriend, N.B., who was
home with her two-year-old son. A.Y. wanted to stay the night and said he
would leave at 5:00 a.m. the next morning. N.B. allowed him to stay, and he
slept on the couch. When the alarm went off the next morning, N.B. told A.Y.
it was time to leave. A.Y. began touching her, ordered her to remove her clothes,
and refused to allow her to leave the apartment. A.Y. demanded she hug and
kiss him and became violent when she resisted, stating he intended to make her
suffer the way she made him suffer.
When N.B. picked up her son, A.Y. told her to put him down and
threatened to break the child's neck if she did not do so. A.Y. forced N.B.'s legs
open and performed oral sex on her. He then forced N.B. to perform fellatio on
him, threatening to harm her if she refused and to break her neck if she bit him.
He then vaginally and anally penetrated her despite her complaints of pain and
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demanded she suck the fecal matter off his penis. While her son cried in another
room, A.Y. anally penetrated N.B. a second time. A.Y. then told N.B. to stand
at the foot of her son's bed and vaginally penetrated her from behind. A.Y. told
her he was going to do this to her for the next forty-eight hours and that he would
hurt her son if she left or answered the door. When A.Y. left to buy cigarettes,
N.B. ran upstairs to a friend's apartment and called the police.
Prior to sentencing, A.Y. underwent a psychological evaluation at the
Adult Diagnostic Treatment Center in Avenel to determine his eligibility for
sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A.
2C:47-1 to -10. In her report, psychologist Donna LoBiondo, Ph.D., stated
A.Y.'s responses to the sexuality questionnaire included: "Something I enjoy
about being a male is . . . my dominance over God's creation" and, "[t]he hard
thing about being a male is . . . the ultimate responsibility of being the dominant
member."
Dr. LoBiondo described A.Y.'s demeanor as "arrogant and detached." He
reported being diagnosed with Bipolar Disorder with posttraumatic stress and
depression. A.Y. admitted he could be overly aggressive when upset, and that
there is "no limit" to his aggression when properly provoked. He stated, "really
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most women are prostitutes." A.Y. denied sexually assaulting N.B., claiming
he "didn't do anything" and that the sex "was consensual."
Dr. LoBiondo opined A.Y.'s "[o]verall clinical impression is of a
psychopathic and sadistic individual who engages in aggression for his own
gratification as well as the humiliation of those he perceives as vulnerable."
Despite these findings, she concluded there was "insufficient evidence that
[A.Y.'s] criminal behavior qualifies as repetitive and compulsive under the
statute. It is more likely that antisocial, sadistic and narcissistic motivations
drove his criminal sexual behavior." He was found not eligible for sentencing
under the purview of the Sex Offender Act.
A.Y. was sentenced to a five-year prison term, subject to an eighty-five-
percent period of parole ineligibility under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, community supervision for life, N.J.S.A. 2C:43-6.4, and the
requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23.
On October 15, 2006, while being detained on the sexual assault charge,
A.Y. forcibly sodomized a fellow inmate, penetrating him repeatedly. He
pleaded guilty to an accusation of third-degree criminal restraint in
circumstances exposing the victim to risk of serious bodily injury, N.J.S.A.
2C:13-2(a), and was sentenced to a concurrent three-year prison term.
A-5240-16T5
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A.Y. did not file a direct appeal from either conviction or sentence. His
subsequent petition for post-conviction relief (PCR) from the sexual assault
conviction was denied. In an unpublished opinion, we affirmed the denial of
PCR.
In 2009, a psychological evaluation and risk assessment of A.Y. was
performed by Alicia Caputo, Ph.D., a psychologist. Her report states A.Y.
reported beginning counseling at age four or five after witnessing the murder of
his brother. He was prescribed medication at age eight for hyperactivity and
because he "started exhibiting signs of violence toward other kids." A.Y. was
in and out of psychiatric treatment as a teenager and was prescribed Paxil,
Risperdal, and other medications but refused to take them.
Prior to his convictions in New Jersey, A.Y. was convicted of arson,
cruelty to animals, theft by unlawful taking, and simple assault in Georgia. As
to the arson and cruelty to animals convictions, A.Y. reported to Dr. Caputo that
he had moved in with his girlfriend and invested much time and money into the
relationship, including buying all their furniture. The relationship deteriorated
and during a physical altercation he had "probably choked her." His girlfriend
called the police and he was removed from the residence. A.Y. came up with
the idea to go over to her residence "and burn it all up" because she had all the
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furniture and would not give it back. He set his girlfriend's residence on fire
while she was not home. Her dog and cat perished in the fire.
A.Y. was treated for Posttraumatic Stress Disorder (PTSD) and Bipolar
Disorder and was prescribed Geodon, Vistaril, and Zoloft while serving a prison
term in Georgia from 2001 to 2004. While in prison he cut his wrist several
times, stating he was depressed but denied true suicidal intent.
Upon his release from prison, A.Y. returned to New Jersey and briefly
participated in outpatient treatment and was prescribed Paxil and Risperdal until
his sexual assault arrest. While incarcerated in jail, A.Y. participated in mental
health treatment and was prescribed Benadryl, Depakote, and Risperdal but
stopped taking these medications in May 2006.
A.Y. entered the State prison system in April 2007. After reporting
symptoms including sleep disturbance, anxiety, depression, irritability, and
mood swings, he was prescribed Depakote, Risperdal, and Vistaril but was noted
as being erratically compliant with medication. At one point he verbalized
suicidal ideation. In April 2009, he returned to outpatient treatment, and was
diagnosed with Mood Disorder Not Otherwise Specified (NOS) and Personality
Disorder NOS. He was prescribed Benadryl, Depakote, and Zoloft.
A-5240-16T5
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Dr. Caputo's report states A.Y.'s "presentation throughout his
incarceration has been described as angry, antisocial, and sarcastic." He
repeatedly disclosed thoughts of violence, stabbing people, or otherwise
assaulting them if his demands were not met. "He also described a constant state
of underlying anger and a view that relationships with people were 'only to get
what I want from them.'" During her interview of A.Y., he described the
criminal restraint offense, admitting he anally penetrated his cell mate with a
broomstick because his cell mate was a child molester. When asked about the
appropriateness of his behavior, he responded, "[t]hat's what he should get."
This version conflicts with A.Y.'s contention that he engaged in consensual sex
with his cell mate.
Dr. Caputo noted A.Y. underwent a parole evaluation by David Gomberg,
Ph.D., in January 2009, which included the use of the Static-991 and MnSOST-
R2 actuarial instruments to assess his future sex offender risk. Dr. Gomberg's
1
"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." R.F., 217 N.J. at 164 n.9 (citing Andrew Harris et al., Static-99
Coding Rules Revised-2003 5 (2003)).
2
"The Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) is
another actuarially derived and rigorously validated risk assessment instrument
developed to aid clinicians and criminal justice officials in assessing risk for
A-5240-16T5
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scoring of the MnSOST-R and Static-99 placed A.Y. in the high risk category
on both instruments. Dr. Gomberg recommended A.Y. be referred for civil
commitment as a sexually violent predator.
Dr. Caputo also administered the MnSOST-R and Static-99 actuarial
instruments. She scored A.Y. a +10 on the MnSOST-R, placing him in the high
risk category for sexual reoffending, and a 5 on the Static-99, placing him in the
moderate-high risk category for sexual reoffending.
Dr. Caputo concluded both of A.Y.'s offenses "involved significant
elements of violence." His sexual assault of N.B. "involved elements of sadism
and humiliation," as well as using threats of violence against her two-year-old
son. "More generally, [A.Y.] exhibited a significant tendency to denigrate and
objectify women." With regard to his criminal restraint conviction, A.Y.
"exhibited no remorse and framed his sexual assault of the victim as 'just
desserts' for the victim's alleged pedophilia." Dr. Caputo stated A.Y. "exhibited
no empathy for either of his sexual victims." She found A.Y. appropriate for
referral for SVPA commitment upon his release from prison.
future sexual dangerousness in convicted sex offenders." In re J.P., 339 N.J.
Super. 443, 451 (App. Div. 2001).
A-5240-16T5
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Dr. Caputo concluded A.Y. "has exhibited a significant penchant for
violence" and "[h]is violent tendencies are the results of significant antisocial
traits." She opined "[a]lthough it is highly likely that [A.Y.] will engage in
violent behavior in the future, this increased risk is not considered a functio n of
psychopathology outside the realm of severe antisocial characterological
disorder."
In October 2009, the State filed a petition seeking A.Y.'s involuntary
commitment under the SVPA. The clinical certificates of psychiatrists Marina
Moshkovich, M.D., and Anasya Salem, M.D., identifying A.Y. as a sexually
violent predator, were submitted in support of the application. A.Y. was
examined by Dr. Moshkovich on October 26, 2009, and by Dr. Salem the next
day. Both of their clinical certificates stated A.Y. scored a 9 on the Static-99R
and a 12 on the MnSOST-R risk assessment instruments, placing him at high
risk for sexual reoffending. They each diagnosed A.Y. as suffering from
Polysubstance Dependence in remission due to controlled environment, Mood
Disorder NOS, and Antisocial Personality Disorder (ASPD), and opined A.Y.
"suffers from a mental abnormality or personality disorder that makes him likely
to engage in acts of sexual violence if not confined in a secure facility for
A-5240-16T5
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control, care, and treatment." A.Y. was temporarily committed to the STU
pending an initial hearing.
For several years, A.Y. waived his initial commitment hearing while he
unsuccessfully pursued PCR in State court, and a writ of habeas corpus in federal
court. A.Y. engaged in treatment at the STU during his temporary commitment
but spent much of that period in the Modified Activities Program (MAP) 3 due
to violating institutional rules.
The hearing on the State's petition was held on June 21, 2017. The State
presented the testimony of Dean M. De Crisce, M.D., an expert psychiatrist, and
Laura Carmignani, Ph.D., an expert psychologist. Appellant presented the
testimony of Barry Zakireh, Ph.D., an expert psychologist. A.Y. elected not to
testify.
Dr. De Crisce performed a forensic psychiatric evaluation and issued a
report in 2017. As part of the evaluation, Dr. De Crisce utilized the Static-99R
and Stable 2007 actuarial instruments. A.Y. scored a 9 on the Static-99R,
placing him at a "well above average" risk to sexually recidivate. He scored
3
The MAP, "a component of the clinical treatment program at the STU that
focuses on stabilizing disruptive or dangerous behaviors," is a behavior-related
treatment modality. M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr.,
379 N.J. Super. 37, 45 (App. Div. 2005).
A-5240-16T5
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A.Y. at 17 on the Stable 2007, "placing him within a group of individuals with
similar dynamic factors that require a high level of dynamic supervision needs."
Dr. De Crisce noted A.Y. scored a 28 on the PCL-R in 2009, "which
approximates the threshold of psychopathy." He also noted A.Y. "incurred a
number of institutional infractions, had not participated in programming, [and]
voiced multiple violent thoughts and denigrating thoughts about women." He
further noted A.Y. tested positive for opiates and cannabis in 2012, and was
placed on MAP in 2013 "for making threats towards medical personnel and
spitting at them." He also incurred MAP placements in 2015 for multiple
infractions including threatening behavior and possession of marijuana and
alcohol.
Dr. De Crisce concluded A.Y. suffered from ASPD as evidenced by his
repeated behaviors. Noting he "has been described as an angry, irritable,
aggressive and controlling individual," A.Y. stated he liked to take risks, and
described himself as the type of person who "wants what he wants" and will "go
all in." A.Y. "expressed a core belief that violence was necessary to get results
and to exert dominance." A.Y. stated: "Once I make my mind up about
something man I'm like a bull." Dr. De Crisce considered A.Y.'s rape behaviors
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as a function of his ASPD, viewing "these rapes as a function of revenge, rage,
antisocial entitlement, and dysfunctional thoughts about women and others."
Dr. De Crisce opined A.Y. also suffered from various substance abuse
disorders and Bipolar II Disorder. He noted substance use is a known risk factor
for recidivism in individuals with a history of sexual offenses.
Dr. De Crisce found A.Y. has a number of factors that contribute to a high
risk of sexual reoffense. He concluded A.Y. still requires therapeutic work to
address his risk taking behaviors despite making positive strides in his treatment
in the last year.
Dr. De Crisce opined A.Y. "suffers from a mental abnormality and
personality disorder that affects his cognitive, volitional, or emotional capacity
such that he is highly likely to sexually reoffend if not kept under the care,
control and treatment of a secure facility such as the STU." His testimony
largely expressed the same findings and conclusions.
Dr. Carmignani prepared a comprehensive annual review report for the
Treatment Progress Review Committee (TPRC) in December 2016. The report
reviewed A.Y.'s sexual offense history, nonsexual offense history, course of
treatment at the STU, institutional infractions, clinical interview, psychological
testing results, diagnoses, and clinical formulation and treatment
A-5240-16T5
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recommendations. The report states A.Y. is diagnosed with ASPD (with
borderline features), Other Specified Paraphilic Disorder (nonconsent)
(provisional), Sexual Sadism Disorder (provisional), Cannabis Use Disorder (in
a controlled environment), Phencyclidine (PCP) Use Disorder (in a controlled
environment), Opioid Use Disorder (in a controlled environment), Alcohol Use
Disorder (in a controlled environment), Bipolar Disorder (by history), and PTSD
(by history).
The report states A.Y.:
demonstrates an enduring, pervasive pattern of
disregard for and violation of the rights of others that
began in adolescence or early adulthood, which is
characterized by a failure to conform to social norms
with respect to lawful behaviors, deceitfulness,
impulsivity, irritability and aggressiveness, reckless
disregard for safety of self or others, irresponsibility,
and lack of remorse.
Dr. Carmignani opined A.Y. "is highly likely to sexually reoffend at this
time if not confined to the STU." Her opinion was "based on his high actuarial
estimate, antisocial and psychopathic personality structure, history of sexual
preoccupation, and history of violence within intimate relationships, as well as
his ongoing negative emotionality, impulsivity, poor judgment, and poor
problem solving skills." She also noted A.Y.'s extensive substance abuse. Dr.
Carmignani also noted A.Y.'s Static-99R and STABLE-2007 scores placed in
A-5240-16T5
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the high risk range to sexually recidivate. The report recommended A.Y. remain
in Phase 2 of treatment. Her testimony largely expressed the same findings and
conclusions.
Dr. Barry Zakireh performed a forensic psychosexual evaluation of A.Y.
in May 2017. His report states:
the evidence overwhelmingly supports the presence of
features or symptoms associated . . . with bipolar or
severe mood disorder, substance abuse, and antisocial
characteristics leading to general criminality,
particularly evident in his late adolescence to early
adulthood, and no evidence of any significant
correlation with paraphilic urges or sexual dynamics.
Dr. Zakireh diagnosed A.Y. with ASPD, Bipolar Disorder, and Substance
Abuse Disorders in a controlled environment (alcohol, cannabis, and opiate s).
Dr. Zakireh opined a person with ASPD:
manifests a long-term maladaptive pattern of behavior
involving disregard for and violations of the rights of
others. The features of this disorder are expressed in
[A.Y.'s] history (since adolescence) of repeatedly
performing acts that are grounds for arrest; multiple
rule violations or arrests for sexual and nonsexual
offenses (criminal versatility); irritability; anger or
aggression; impulsivity or poor impulse control
(repeated criminal acts despite arrests, sanctions, or
supervision); irresponsibility and/or failure to plan in a
socially constructive or adaptive manner (e.g., criminal
behavior leading or exacerbating interpersonal and
social difficulties[)]; reckless disregard for the safety of
self or others (placing a victim at significant risk of
A-5240-16T5
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harm or maladaptive outcome; sexual offending against
a vulnerable female with presence of a child in the
residence); and poor empathy. [A.Y.] has showed the
above pattern occasionally in significant or extreme
ways, and it has been expressed through sexual and
nonsexual aggression on multiple occasions over a
prolonged period.
Dr. Zakireh found significant evidence of a confounding or corollary
mental condition of Bipolar Disorder, which had been treated with "an effective
mood stabilizing psychotropic." He concluded the primary motivations or
pattern of offending appear to correlate primarily with an antisocial but not
paraphilic pathway to sexual offending. He also noted ASPD "involves a
diminishing of the intensity or frequency of negative outcomes through aging,"
particularly in the fourth decade of life.
Dr. Zakireh utilized the Static-2002R to assess actuarial risk of sex offense
recidivism, scoring A.Y. at 6, placing him in the above-average risk category.
"Beyond the predisposing element of [ASPD]," Dr. Zakireh found insufficient
evidence of a mental disorder that results in a serious difficulty controlling
harmful sexual behavior such that it is highly likely A.Y. will not control his
sexually violent behavior and will reoffend. He concluded A.Y. presents an
overall moderate level of risk to sexually reoffend, considering the static,
actuarial, and dynamic factors.
A-5240-16T5
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Dr. Zakireh testified the Static-2002R had "greater predictive accuracy"
than the Static-99R. He said A.Y.'s score of 6 correlated with only a nineteen
percent rate over a five-year period. Dr. Zakireh also administered the Static-
99 and scored A.Y. at 7. His testimony otherwise largely expressed the findings
and conclusions expressed in his report.
Judge Philip M. Freedman rendered a comprehensive oral decision on
June 27, 2017, in which he reviewed the testimony, entire documentary record,
prior criminal record, prior evaluations, mental health treatment, history of
infractions, and controlling case law. The judge recounted A.Y.'s statements
during treatment in late 2016 that rejection by women took him to a place of
rage and retaliation against them. The judge provided detailed findings
regarding the testimony and opinions of Drs. De Crisce and Carmignani, which
he credited, and the testimony of Dr. Zakireh, whose theory that A.Y. had
reduced his anti-sociality through medications for his Bipolar Disorder he
rejected, finding it had "no basis."
Judge Freedman reviewed the records relied upon by the State's experts in
reaching their opinions, and found the records to be of the type relied upon by
experts in their field. The judge also found the records supported their opinions.
In contrast, Judge Freedman concluded A.Y. and his expert substantially
A-5240-16T5
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overstated the effect of his use of medication for his Bipolar Disorder on his
likelihood to reoffend. While recognizing Abilify renders A.Y. capable of
engaging in treatment, Judge Freedman concluded the Abilify "hasn't in any
way, shape or form eliminated his need for treatment to deal with his [ASPD]
and his . . . problems." He determined A.Y.'s antisocial behavior and
predisposition to engage in sexual offending were not caused by his Bipolar
Disorder. The judge found A.Y. "clearly needs continued treatment" despite the
improvement in his Bipolar Disorder through medication, agreeing with Dr.
DeCrisce's opinion that A.Y.'s Bipolar Disorder "is incidental to his presentation
and not the basis of it." The judge noted Dr. Zakireh acknowledged that Bipolar
Disorder does not predispose a bipolar individual to commit sexually violent
offenses. He further noted Dr. Zakireh conceded A.Y.'s Bipolar Disorder was
peripheral to his sexual offending, A.Y. was still predisposed to engage in acts
of sexual violence by his ASPD, and A.Y. would have far more maladaptive
behaviors if he did not take his medications.
Judge Freedman concluded A.Y. had "not made that much treatment
progress," was still in Phase 2, still needed to develop relapse prevention by
completing relapse prevention 2 and 3, and still needed extensive substance
A-5240-16T5
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abuse treatment. He viewed A.Y. as "far from being ready for a conditional
discharge."
The judge found the State clearly and convincingly proved its case for
civil commitment. Based on the expert testimony of the State's witnesses, Judge
Freedman found by clear and convincing evidence that A.Y. suffers from a
mental abnormality in the form of substance abuse disorders and a personality
disorder involving antisocial traits, which "predisposes him to engage in acts of
sexual violence." The judge further found A.Y. "would have serious difficulty
controlling his sexually violent behavior in the community." He also found A.Y.
"would be highly likely to return to drug use, which would disinhibit him" and
make his anti-sociality "even worse." Judge Freedman concluded A.Y. would
not be highly likely to comply with conditions of a conditional discharge, noting
even A.Y.'s expert "could not testify to that."
Judge Freedman determined A.Y. "continues to be a sexually violent
predator in need of civil commitment in a secure facility for control, care, and
treatment," who is "highly likely to engage in acts of sexual violence" for "the
foreseeable future." Judgment was entered committing A.Y. to the STU. This
appeal followed.
A.Y. raises the following issues on appeal:
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POINT I
THE TRIAL JUDGE CLEARLY ERRED WHEN HE
ASSESSED A.Y.'S RISK OF REOFENDING
WITHOUT ADDRESSING THAT HE NOW HAS
VOLITIONAL CONTROL OVER HIS SEXUALLY
ASSAULTIVE BEHAVIOR THROUGH HIS
SUCCESSFUL TREATMENT AT THE STU.
POINT II
A.Y.'S COMMITMENT IS IMPROPERLY BASED
ON STATE EXPERTS' INADMISSABLE NET
OPINION TESTIMONY.
A. Neither State Expert Could Provide Any Probability
Basis to Find A.Y. "Highly Likely" to Reoffend.
B. The Static-99 Risk Assessment Tool Demonstrated
that [A.Y.'s] Risk of Sexually Reoffending Was Below
50%.
C. The State Experts Could Not Point to Any
Methodology Or Objective Standards Used to Reach
Their Finding.
D. Both State Experts Ignored Base Rate Data that Was
Relevant to Determine [A..Y.'s] Risk of Reoffending.
E. The State Experts Failed to Correlate [A.Y.'s] PCL-
R Score with Finding He Was Highly Likely to
Reoffend.
F. The State Experts Failed to Correlate Any STABLE-
2007 Score with Finding [A.Y.] Highly Likely to
Reoffend.
G. Dr. Zakireh, A.Y.'s Expert, Was the Only Witness
Who Used An Empirically Validated Risk Assessment.
A-5240-16T5
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We have considered these arguments and find they lack merit.
Our "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 are generally '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 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).
The State is, as a general matter, entitled to call experts on the subject of
commitment and, to the extent the information the experts relied upon is of a
type reasonably relied upon by experts in that field, the State can prove the
grounds for commitment without calling as a witness each person who provided
information upon which the expert relied. In re Civil Commitment of W.X.C.,
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407 N.J. Super. 619, 641 (App. Div. 2009), aff'd on other grounds, 204 N.J. 179
(2010); see also State v. Torres, 183 N.J. 554, 576 (2005); N.J.R.E. 703. Prior
expert opinions are admissible, not as substantive evidence, but as a basis for
the expert's opinion. In re Commitment of E.S.T., 371 N.J. Super. 562, 576
(App. Div. 2004).
However, the trial judge conducting an initial hearing is "not required to
accept all or any part of" an expert's opinion. R.F., 217 N.J. at 174 (quoting
D.C., 146 N.J. at 61). That is because the ultimate determination is "'a legal
one, not a medical one, even though it is guided by medical expert testimony.'"
Ibid. (quoting D.C., 146 N.J. at 59). "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.'"
Ibid. (quoting D.C., 146 N.J. at 59).
Governed by these standards, we discern no basis to disturb Judge
Freedman's decision. First, it is not necessary that an individual suffer from a
mental abnormality to be deemed a sexually violent predator under the SVPA.
A personality disorder alone may be used as a basis to conclude that one has a
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predisposition to sexually reoffend. See N.J.S.A. 30:4-27.26 (defining a
"sexually violent predator," in part, as a person 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") (emphasis added); see also W.Z., 173 N.J. at 129. It is also not
necessary that an individual have a sexual compulsion, such as paraphilia, or a
complete or total loss of control over his or her behavior to be deemed a sexually
violent predator under the SVPA. W.Z., 173 N.J. at 129. Rather, the individual
must be unable to control his or her sexually violent behavior. Ibid. However,
"the diagnosis of each sexually violent predator susceptible to civil commitment
need not include a diagnosis of 'sexual compulsion.'" Ibid.
In our view, the credible evidence in the record amply supports Judge
Freedman's findings that A.Y. presently suffers from ASPD, which makes it
highly likely he will not control his sexually violent behavior and will reoffend
if not confined to the STU for treatment. Even though A.Y. was not diagnosed
with a form of paraphilia, the State's experts diagnosed him with severe ASPD
that affected him emotionally, cognitively, or volitionally so as to predispose
him to engage in acts of sexual violence. Judge Freedman found the State's
experts opined, credibly, that as a result of his personality disorder, it was highly
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likely that A.Y. would sexually reoffend if not confined to the STU for control,
care, and treatment. We discern no basis to overturn his determination.
A.Y. argues the State's experts' testimony amounted to inadmissible net
opinions because they gave no empirical basis for their conclusion that A.Y. was
highly likely to reoffend. Pointing to the results of one actuarial instrument,
A.Y. claims the State's experts provided no evidence he has more than a fifty-
one percent risk of sexually reoffending. A.Y. asserts the State's experts failed
to address the base rate of sexual recidivism among individuals similar to A.Y.,
noting one study found the overall sexual recidivism rate was only 13.5 percent.
He also contends neither State expert described their methodology or showed
any reliability in their findings. He argues our Supreme Court's recent decision
in In re Accutane Litig., 234 N.J. 340 (2018), which adopted the factors set forth
in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), requires the
reversal of the trial court's refusal to strike the testimony of the State's experts
as inadmissible net opinions. We are unpersuaded by these arguments.
When reviewing an evidentiary ruling whether to bar expert testimony,
we apply considerable deference to the trial court and generally do not disturb
the trial court's decision unless the ruling demonstrably comprises an abuse of
discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008); see also Townsend v.
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Pierre, 221 N.J. 36, 52-53 (2015) (noting the decision to admit or exclude expert
testimony is "committed to the sound discretion of the trial court") (citing State
v. Berry, 140 N.J. 280, 293 (1995)).
"An expert may not provide an opinion at trial that constitutes 'mere net
opinion.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).
The net opinion rule bars admission "of an expert's conclusions that are not
supported by factual evidence or other data." Townsend, 221 N.J. at 53-54
(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). The expert must
provide the factual basis and analysis that support the opinion, rather than stating
a mere conclusion. Davis, 219 N.J. at 410. Courts "may not rely on expert
testimony that lacks an appropriate factual foundation and fails to establish the
existence of any standard about which the expert testified." Ibid. (quoting
Pomerantz Paper, 207 N.J. at 373).
The net opinion rule does not require experts to organize or support their
opinions in a specific manner "that opposing counsel deems preferable."
Townsend, 221 N.J. at 54. Consequently, "[a]n expert's proposed testimony
should not be excluded merely 'because it fails to account for some particular
condition or fact which the adversary considers relevant.'" Ibid. (quoting
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Creanga v. Jardal, 185 N.J. 345, 360 (2005)). An expert's failure "to give weight
to a factor thought important by an adverse party does not reduce his testimony
to an inadmissible net opinion if he otherwise offers sufficient reasons which
logically support his opinion." Ibid. (quoting Rosenberg v. Tavorath, 352 N.J.
Super. 385, 402 (App. Div. 2002)). Instead, such omissions may be subjected
to exploration and searching cross-examination at trial. Id. at 54-55.
Even so, the net opinion doctrine requires experts to "be able to identify
the factual bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are [scientifically]
reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417
(1992)).
In Accutane, the Court explained trial courts perform their "gatekeeping
role" to assure reliability of expert scientific testimony by requiring experts "to
demonstrate" they applied "scientifically recognized methodology in the way
that others in the field practice the methodology." 234 N.J. at 399-400. Thus,
"[w]hen a proponent does not demonstrate the soundness of a methodology, both
in terms of its approach to reasoning and to its use of data, from the perspective
of others within the relevant scientific community, the gatekeeper should
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exclude the proposed expert testimony on the basis that it is unreliable." Id. at
400.
With regard to quantifying the likelihood of A.Y. sexually reoffending,
Dr. De Crisce did not calculate a recidivism rate for him and Dr. Carmignani did
not quantify his risk of reoffending by assigning a percentage rate. Judge
Freedman noted that in Kansas v. Crane, the United States Supreme Court
recognized "that in cases where lack of control is at issue, 'inability to control
behavior' will not be demonstrable with mathematical precision." 534 U.S. 407,
413 (2002). The Court declined to establish a precise standard for the degree of
"lack of control" that must be proven, stating only "there must be proof of
serious difficulty in controlling behavior." Ibid. Our Supreme Court likewise
did not impose a technical meaning or quantitative threshold, holding "the State
must prove by clear and convincing evidence . . . 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.
Both of the State's experts interviewed A.Y. extensively and relied on
prior evaluations, treatment records, other appropriate documents, and actuarial
instruments that supported their conclusions. The State's experts provided the
factual bases for their conclusions and explained the methodologies they
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employed. Although their conclusions differ from those of A.Y.'s expert, their
conclusions were not net opinions. Their testimony confirmed their opinions
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.
The MnSOST-R and Static-99R "assessment tools are based upon static
factors, which are elements of a person's history which cannot be changed, as
opposed to dynamic factors, which are elements which can be modified over
time." J.P., 339 N.J. Super. at 451.
The MnSOST-R "measures sexual recidivism by taking into account
certain static factors (historical facts that do not change over time) and attempts
to capture certain dynamic factors (such as an individual's participation in
treatment)." In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 460 n.1
(App. Div. 2006) (citing In re Commitment of R.S., 339 N.J. Super. 507, 517-
19 (App. Div. 2001), aff'd o.b., 173 N.J. 134 (2002)). "The MnSOST-R carries
a possible total score of thirty-one, with a high score being the worst. Any score
of eight or above denotes a 70% recidivism rate and a 'possible' commitment."
E.S.T., 371 N.J. Super. at 569 n.3. A.Y. scored a +10 on the MnSOST-R,
placing him in the high risk category for sexual reoffending.
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The Static-99R is used to predict sexual recidivism. M.L.V., 388 N.J.
Super. at 460 n.1. "The Static-99 was designed to predict long-range risk for
sexual recidivism by combining two well standardized risk assessment scales."
J.P., 339 N.J. Super. at 451. "Research has shown" the test's "predictive power
is increased" "by combining the factors tapped by these two scales." Ibid. The
Static-99 is a recognized actuarial test used to estimate the probability of
sexually violent recidivism. R.F., 217 N.J. at 164 n.9. A.Y. scored a 5 on the
Static-99, placing him in the moderate-high risk category for sexual reoffending.
In In re Registrant, C.A., the Court stated scientific literature has shown
"the use of actuarial concrete predictors is at least as good, if not in most cases
better, in terms of reliability and predictability than clinical interviews." 146
N.J. 71, 106 (1996). Allocating weight to risk factors in accordance with
scientific literature and expertise was held an acceptable method of predicting
future criminal sexual behavior. Id. at 105.
In R.S., we concluded "the use of actuarial instruments is generally
accepted by professionals who assess sex offenders for risks of reoffense." 339
N.J. Super. at 538. We noted "there is support in scientific literature . . . for the
use of these instruments; and that actuarial instruments have been accepted by
the courts of at least six other states." Id. at 548. We held "actuarial instruments
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satisfy the Frye4 test and are admissible for consideration by the State's experts"
at SVPA proceedings "as a factor in the overall prediction process." Id. at 534,
548. Our Supreme Court agreed, holding actuarial risk assessment instruments
are admissible in SVPA commitment hearings "when such tools are used in the
formation of the basis for a testifying expert's opinion concerning the future
dangerousness of a sex offender." R.S., 173 N.J. at 137. In a decision
announced the same day, the Court rejected "contentions concerning the
unreliability of those actuarial instruments." W.Z, 173 N.J. at 133. 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." R.F.,
217 N.J. at 164 n.9 (quoting R.S., 173 N.J. at 137).
The methodology utilized by the State's experts satisfied the requirements
imposed by the Court in Accutane. We discern no abuse of discretion by the
trial court in admitting and considering the testimony of Drs. De Crisce and
Carmignani, including their use of and reliance upon the MnSOST-R and Static-
99R actuarial instruments.
Affirmed.
4
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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