IN THE MATTER OF THE CIVIL COMMITMENT OF W.T. (SVP-687-13, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4820-14T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF W.T.
SVP-687-13.
_________________________
Submitted March 1, 2017 – Decided July 18, 2017
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
SVP-687-13.
Joseph E. Krakora, Public Defender, attorney
for appellant W.T. (Nancy C. Hayes, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for State of New Jersey (Melissa H.
Raksa, Assistant Attorney General, of counsel;
Amy Beth Cohn, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant W.T. appeals from the June 10, 2015 Law Division
judgment involuntarily 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. 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, the State must prove by clear and convincing
evidence:
(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[.]
"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."
[In re Civil Commitment of R.F., 217 N.J. 152,
173 (2014) (citations omitted) (quoting In re
Commitment of W.Z., 173 N.J. 109, 130
(2002)).]
In order to be considered a sexually violent predator, an
individual must have committed a sexually violent offense.
2 A-4820-14T2
N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually
violent offense. Ibid. With this legal framework in mind, we
will now consider the facts that led to W.T.'s commitment under
the SVPA.
On December 14, 2000, W.T. pled guilty to first-degree
aggravated sexual assault of a child under the age of thirteen,
N.J.S.A. 2C:14-2(a)(1). This conviction was predicated on the
following facts. On October 14, 2000, W.T., then age eighteen,
grabbed a twelve-year-old girl identified here as L.B, pulled on
her clothes, and separated her from a friend with whom she was
walking. W.T. slapped L.B. in the faced and threw her on the
porch of a nearby house. A neighbor interrupted the assault and
told W.T. let L.B. go. W.T complied, but followed L.B. and her
friends as they walked to a nearby store. W.T. again approached
L.B., pulled her hair, grabbed her arm, and forced her into the
hallway of an apartment building while covering her mouth and
repeatedly striking her on the left side of her face. W.T. pulled
down one side of L.B.'s pants and inserted his penis into her
vagina. When L.B. resisted, he slapped and choked her and held
down her arms. W.T. stopped the assault when L.B. started to
scream and cry. The police arrested W.T. shortly thereafter.
While being processed, he exposed his penis to a female police
officer and told her to "suck this."
3 A-4820-14T2
Kenneth L. McNiel, Ph.D. conducted a psychological evaluation
of W.T. at the Adult Diagnostic and Treatment Center (ADTC) to
determine if he was eligible for sentencing under the New Jersey
Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10. During the
evaluation, W.T. reported a chronic history of daily marijuana
intoxication and intermittent use of ecstasy and angel dust; and
he had an extensive history of delinquency, including car theft
and drug dealing. His Family Part dispositions included a period
of confinement at the Juvenile Detention Center in Jamesburg. W.T.
also reported an extensive pattern of compulsive sexual thoughts
and unusual sexual behaviors, including bondage, orgies, exposing
himself, and using sexual toys. He said he masturbated several
times daily and had compulsive masturbation fantasies involving
rough sex and rape. W.T. admitted he was unable to control his
sexually aggressive thoughts and fantasies and had raped two or
three girls in the fifteen-year-old range.
Dr. McNiel found W.T. presented with severe psychological
disturbance, including a likely psychotic disorder, and was a
severely disturbed and impulsive individual with co-morbid
psychotic symptomatology and sexual pathology. He found W.T.
eligible for sentencing under the SOA, and recommended W.T. serve
hi sentence in the ADTC where he would receive sex offender therapy
and psychiatric treatment.
4 A-4820-14T2
On April 4, 2001, the court sentenced W.T. to an eight-year
term of imprisonment to be served in the ADTC, with six years,
nine months and twenty-three days of parole ineligibility. W.T.
was also sentenced to community supervision for life (CSL) and
ordered to comply with the registration requirements of Megan's
Law. On August 21, 2003, his sentence was amended to include a
five-year term of parole supervision to begin upon completion of
his sentence. Defendant was sentenced under the version of the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, that existed in
April 2009, which required the sentencing judge to find defendant
committed a "violent crime." The statute defined "violent crime"
as any first or second degree offense in which the actor causes
death or serious bodily injury. N.J.S.A. 2C:43-7.2(d); see also
State v. Thomas, 166 N.J. 560, 567-68 (2001). “The Legislature
amended NERA on June 29, 2001, eliminating the "violent crime"
provision, opting instead to enumerate the specific crimes subject
to NERA.” State v. Norman, 405 N.J. Super. 149, 152 n.2 (App.
Div. 2009).
While incarcerated at the ADTC, W.T. incurred over 200
institutional infractions for which he was sanctioned. Many of
his infractions demonstrated sexually inappropriate behavior,
including masturbating in his cell doorway; making sexual
gestures; demanding sex from other inmates; having an ongoing
5 A-4820-14T2
sexual relationship with a fellow inmate; and ejaculating and
throwing semen out of his cell. W.T. also committed nonsexual
infractions for which he was sanctioned, including numerous
assaults; possession of a weapon; assault with a weapon; fighting
with a person; threat with bodily harm; setting fires; refusing
to obey; conduct which disrupts; and destroying/altering
government property. On October 4, 2005, W.T. was charged with
fourth-degree aggravated assault. He pled guilty, and was
sentenced to ninety days consecutive to his present sentence.
Prior to completion of his sentence, W.T. was referred for
civil commitment under the SVPA. Because one of the evaluating
psychiatrists found W.T. did not meet the criteria for commitment,
he was released from the ADTC on December 10, 2008. On February
9, 2009, he was placed on the Global Positioning Satellite (GPS)
Monitoring Program.
W.T.'s criminal activity continued after his release. He was
charged with throwing bodily fluids at Department of Corrections
employees; pled guilty to an amended charge of improper behavior;
and was sentenced to one day in jail. He was charged with
aggravated assault with a deadly weapon; pled guilty; and was
sentenced to ten days in jail. He cut off his GPS ankle transmitter
without the Parole Board's approval, and was charged with failure
to comply with sex offender monitoring device and interfering with
6 A-4820-14T2
sex offender monitoring device. He was charged with fourth-degree
failure to register, N.J.S.A. 2C:7-2(e); pled guilty; and was
sentenced to one-year in prison. While incarcerated, he was
charged with indecent exposure and making sexual
proposals/threats, and sanctioned ninety days' administrative
segregation for each charge.
Prior to W.T.'s max-out date of January 16, 2014, the State
filed a petition seeking his involuntary commitment under the
SVPA. Judge Philip M. Freedman conducted a commitment hearing,
at which a psychiatric expert, Roger M. Harris, M.D., and a
psychological expert, Christine E. Zavalis, Psy.D., testified for
the State, and a psychological expert, Timothy P. Foley, Ph.D.,
testified for W.T.
Dr. Harris diagnosed W.T. with Antisocial Personality
Disorder (ASPD) and Cannabis and Alcohol Use Disorders. He
explained that these conditions do not spontaneously remit; only
through treatment can one learn to control the impulses caused by
these disorders; and the combination of an ASPD and Cannabis and
Alcohol Abuse Disorders increased W.T.'s risk to sexually
reoffend. Dr. Harris testified that W.T. demonstrated he had
little ability to control his aggressiveness, both sexual and non-
sexual, and when combined with alcohol or cannabis, whatever
inhibitions remained would be quickly eroded, allowing W.T. to act
7 A-4820-14T2
impulsively without thinking and without regard to himself or
societal norms.
Dr. Harris testified that W.T.'s ASPD manifested as a serious
difficulty controlling his sexual offending behavior. He opined
that although ASPD alone does not predispose one to sexually
reoffend, it did in W.T.'s case. He was concerned that, in both
statements and drawings, W.T. demonstrated extremely poor impulse
control, severe cognitive distortions, and anger toward women.
Dr. Harris opined that W.T.'s inability to suppress or control
himself demonstrated his profoundly poor regulation in both sexual
and nonsexual realms. Dr. Harris emphasized that all of these
examples overwhelmingly demonstrated that not only was W.T.
sexually preoccupied, but was sexually aggressive in ways other
than sexually assaulting people, such as the indecent exposure,
the throwing of semen, the fantasies of raping, and actual self-
reports of raping other minor females.
Dr. Harris testified that W.T. scored a "7" on the STATIC-
99R1 actuarial instrument, indicating that he fell within the high
1
The STATIC-99R is an actuarial test used to estimate the
probability of sexually violent recidivism in adult males
previously convicted of sexually violent offenses. See Andrew
Harris et al., Static-99 Coding Rules Revised-2003 5 (2003). Our
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
8 A-4820-14T2
risk range to sexually recidivate when released from prison.
However, that score did not fully reflect W.T.'s risk, as he also
demonstrated dynamic and psychological factors not accounted for
in the STATIC-99R that placed him in the high risk category,
namely, a profound inability to self-regulate, the use of sex as
a coping mechanism, poor cognitive problem-solving, and his
sexualized aggression. Dr. Harris also testified that W.T. scored
a "32.2" on the Psychopathy Checklist-Revised, 2nd Edition (PCL-
R),2 which indicated he met the diagnostic criteria for
psychopathy.
Based on his review of the ADTC reports and the STU treatment
notes, Dr. Harris concluded that W.T. made insufficient progress
through treatment to mitigate his risk factors to sexually
reoffend. He explained that W.T. served the majority of his
incarceration at the ADTC in detention because of sanctions for
behavioral problems and institutional infractions, and interfered
SVPA."' R.F., supra, 217 N.J. at 164 n.9 (quoting In re Commitment
of R.S., 173 N.J. 134, 137 (2002)).
2
The PCL-R provides a dimensional score that represents the
extent to which a given individual is judged to match the
"prototypical psychopath." The cut-off score on the PCL-R
indicative of psychopathy is 30. That is, an individual who
receives a score of 30 or above on the PCL-R meets diagnostic
criteria for psychopathy.
9 A-4820-14T2
with his engagement in treatment. Even when W.T. was in the
general population at the ADTC, he was noncompliant with treatment
and showed very poor cooperation with any rehabilitative and
programming efforts.
Dr. Harris testified that since W.T.'s temporary commitment
to the STU in 2014, his behavioral problems short-circuited his
treatment progress. W.T. did poorly, incurred multiple MAP3
placements, and was currently on MAP. Dr. Harris noted that at
the STU, W.T. continued his ADTC incarceration history of acting
out, which demonstrated a profound inability to control himself.
Dr. Harris diagnosed W.T. with Alcohol and Cannabis Use
Disorders based on W.T.'s self-reports that he used marijuana
daily beginning as an adolescent, and admission to abusing alcohol,
cocaine, ecstasy and angel dust, overdosing on hallucinogenic
mushrooms, and selling drugs. W.T. reported that he attended
outpatient treatment for substance abuse but did not complete the
program, and he did not attend substance abuse treatment while on
parole and resumed consuming alcohol during this period. Dr.
Harris noted that with W.T., an abuse of substances acted as a
3
The Modified Activities Program (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. NJDHS/NJDOC, 379 N.J. Super. 37, 45 (App.
Div. 2005).
10 A-4820-14T2
disinhibitor and whatever inhibitions remained would be quickly
eroded allowing W.T. to act impulsively, criminally, and sexually,
without thinking, and without regard to himself or societal norms.
Dr. Harris concluded that W.T. had not had sufficient substance
abuse treatment to mitigate his risk.
Dr. Harris concluded that W.T. suffers from: (1) a severe
personality disorder that affects him emotionally, cognitively,
or volitionally so as to predispose him to commit acts of sexual
violence; and (2) a disinhibiting Alcohol and Cannabis Abuse
Disorder. He opined that W.T.'s ASPD caused him to have serious
difficulty controlling his sexual offending behavior such that he
was highly likely to sexually reoffend if not confined to the STU
for treatment.
Dr. Zavalis diagnosed W.T. with ASPD with Borderline
features, which is characterized by a failure to conform to
societal norms and lawful behavior, deceitfulness, impulsivity,
irritability and aggressiveness, reckless disregard for safety of
self or others, irresponsibility and lack of remorse. She also
explained that the ASPD diagnosis took into account W.T.'s criminal
behavior and aggressiveness, impulsive acts, and lack of any
remorse or empathy for his victims.
Dr. Zavalis testified that the borderline features of W.T.'s
personality manifested in a pattern of instability in his
11 A-4820-14T2
interpersonal relationships, self-injurious behavior, paranoia,
and intense anger. W.T.'s rape of L.B. demonstrated borderline
behavior because W.T. acted sexually aggressive, compulsively, and
brazenly in the presence of witnesses who could easily identify
him, without any regard for the impact on the victim, the
witnesses, or himself. W.T.'s borderline features were further
demonstrated when, in response to L.B.'s rejection and resistance
to his sexual advances, he repeatedly hit her and then raped her.
Dr. Zavalis noted that W.T.'s personality disorder also
manifested in non-sexual ways, as evidenced by his many violent
institutional infractions at the ADTC and MAP placements for
aggressive behavior since arriving at the STU. Alhough an ASPD
diagnosis alone does not predispose one to sexual violence, Dr.
Zavalis concluded it did in W.T.'s case.
Dr. Zavalis also diagnosed W.T. with Cannabis Use Disorder,
which refers to a "cluster of cognitive, behavioral, and
physiological symptoms indicating that the individual continues
using marijuana despite significant substance-related problems."
Dr. Zavalis explained that this disorder did not, on its own,
predispose W.T. toward sexual violence; however, if W.T. relapsed,
it could have a disinhibiting effect on his behavior. Dr. Zavalis
testified that the combination of W.T.'s ASPD and Cannabis Use
Disorder increased his risk to sexually reoffend.
12 A-4820-14T2
Dr. Zavalis provisionally diagnosed W.T. with Other Specified
Paraphilia Disorder (nonconsent) based on his contradictory
statements about his deviant arousal. Despite W.T.'s
contradictions, Dr. Zavalis believed that he likely met the
criteria for this disorder, but she declined to diagnose the full
Paraphilia Disorder. However, she recommended that STU clinicians
address the issue of W.T.'s deviant arousal to nonconsensual sex
in his treatment. She also provisionally diagnosed W.T. with
Borderline Intellectual Functioning based on prior testing
administered at the ADTC.
Dr. Zavalis also found it significant the extent to which
W.T. acted out while incarcerated. She remarked that the
significance of the 200 disciplinary charges was not only the
sheer number of infractions, but also the wide variety of the
behavior, and found these acts illustrative of W.T.'s significant
lack of emotional control and an inability to cope with stressors.
W.T. externalized blame for these acts and took no responsibility
or ownership of the behaviors that resulted in the sanctions
imposed against him.
Dr. Zavalis noted that since arriving at the STU, W.T.
incurred several MAP placements, had been on MAP continuously
since September 2014, and failed to take any responsibility for
these placements. W.T. failed to understand that by acting
13 A-4820-14T2
similarly at the STU as he did at the ADTC, he was repeating his
prior pattern of behavior that resulted in sanctions against him
and the removal of privileges. W.T. also attempted to "play" the
STU staff against each other, which indicated the strength of his
personality disorder.
Dr. Zavalis testified that W.T. scored "32.2" on the PCL-R
she administered, which placed him above the threshold for
psychopathy, and a "7" on the STATIC-99R she administered, which
placed him within the high risk range to sexually recidivate. She
noted that W.T. did not have the necessary treatment progress to
mitigate his risk; although he engaged in treatment periodically
at the STU, his knowledge of concepts was minimal and he lacked
coping skills and sufficient relapse prevention strategies; and
the strategies he described -- walking away and avoiding the
situation -- were unrealistic given his history. W.T. lacked the
ability to manage his feelings when he does not get what he wants
and resorts to "maladaptive coping strategies when under stress."
In her risk assessment, Dr. Zavalis considered W.T.'s high
STATIC-99R and PCL-R scores, and his various dynamic factors
unaccounted for in the actuarial tools, including his failure to
comply with any type of community or institutional supervision and
the frequent violation of both; lack of any deterrent effect of
external supervision upon him; hostility, impulsivity, emotional
14 A-4820-14T2
instability and sexual preoccupation; severe ASPD; use of sex to
cope with stressors as evidenced by the almost compulsive
masturbation while on the telephone despite complaints by others;
and utter disregard for himself or others. Dr. Zavalis found
there were no mitigating factors; W.T. had no benefit of any
treatment effect; and he failed to comply with CSL conditions as
evidenced by his parole violations and demonstrated ongoing
behavioral issues.
Dr. Zavalis concluded that W.T.'s severe ASPD affected his
emotional, volitional, and cognitive capacities, and predisposed
him to commit sexually violent acts, and his Cannabis Use Disorder
could act as a disinhibitor and erode any self-regulation should
he relapse. Dr. Zavalis opined that W.T. was highly likely to
sexually reoffend if not confined.
Dr. Foley agreed that W.T. met the diagnostic criteria for
ASPD and Cannabis Use Disorder. However, he did not find that
W.T.'s ASPD affected volitional controls that cause a
predisposition to commit acts of sexual violence. He testified
that in W.T.'s case, he would need more evidence of a pattern of
paraphilic acts -- not just the one rape -- in addition to a
diagnosis of ASPD in order to find that W.T. is predisposed to
sexual violence.
15 A-4820-14T2
Dr. Foley reviewed W.T.'s sexual and non-sexual offending and
previous mental health assessments. He testified that the rape
of L.B. was an unambiguous sexually violent act; however, he was
unsure whether W.T.'s indecent exposure/masturbation while
incarcerated should have been scored on the STATIC-99R as a sexual
offense. He was also uncertain whether W.T.'s repeated acts of
throwing semen from his cell were sexualized behaviors or just
expressions of anger and disgust. Nevertheless, Dr. Foley did not
find that these institutional behaviors would necessarily increase
W.T.'s risk to sexually reoffend in the community.
Dr. Foley agreed with Dr. McNiel's finding that W.T. suffers
from a likely psychotic disorder and Dr. McNiel's questioning of
W.T.'s amenability for treatment. He also agreed with Dr. Harris
that W.T.'s inability to self-regulate caused self-defeating
behaviors that led to sanctions such as MAP placements at the STU,
and admitted that W.T. is a "really disturbed impulsive individual
with co-morbid psychotic symptomatology and sexual pathology as
well." However, he believed that if W.T. dedicated himself, and
if his mental health issues were under control, he could
participate in treatment. Nonetheless, he conceded that W.T.'s
history suggested he would not comply with the treatment program
and would have a "great deal of difficulty with it, not so much
16 A-4820-14T2
with the content, but with the behavioral regulation that would
be necessary to go along with it."
Although conceding that W.T.'s ability to control himself in
the community was "really questionable," Dr. Foley found that he
was less than highly likely to sexually reoffend because of the
absence of a Paraphilia diagnosis and his estimation of the STATIC-
99R score. Dr. Foley believed that W.T. was highly likely to
reoffend in general as opposed to sexually, and stated that if
W.T. was re-arrested "the odds are it wouldn't be for a sexually
violent offense, it would be for something else." Dr. Foley
concluded that a drug treatment program and psychiatric services
would be appropriate for W.T. (Aa400) He opined that W.T. did not
satisfy the criteria for commitment under the SVPA and should be
released.
Judge Freedman rejected Dr. Foley's opinion that W.T.'s ASPD
does not predispose him to commit sexually violent acts, or that.
W.T.'s behaviors while incarcerated could not be understood as
sexual in nature and instead were expressions of anger and disgust.
The judge found it more logical and reasonable to conclude that
W.T.'s conduct was sexually based. The judge determined there was
sufficient evidence to conclude that W.T.'s conduct, in
conjunction with the very serious offense of aggravated sexual
assault, showed his predisposition to re-offend sexually.
17 A-4820-14T2
Judge Freedman found that the incident where W.T. exposed
himself to a female officer during processing after his arrest for
the aggravated sexual assault, and the exposure/masturbation while
incarcerated, were significant in this case. The judge noted that
Dr. Zavalis correctly utilized indecent exposure/masturbation
incident as the predicate sexual offense which corresponded to a
higher STATIC-99R score. The judge reiterated:
I think that's the basic issue here -- I think
that there's more than an ample basis to
conclude that [the indecent
exposure/masturbation incident] was sexually
motivated . . . that he can't control his
sexual conduct . . . and that the experts of
the [S]tate are well within reason to rely on
all of his conduct after his brazen sexual
assault to conclude that his [ASPD] Disorder
predisposes him, and that it wasn't just a
random . . . anti-social act.
Judge Freedman also discussed Dr. McNiel's report and W.T.'s
psychological testing at the ADTC, and stressed the importance of
many of W.T.'s representations and admissions during that testing.
The judge commented:
Every person that gets convicted of a sexually
violent offense goes to Avenel. One of these
reports is in every one of those cases. I've
never seen [someone's psychological
condition] described as severe, and I have
never seen a depiction of an ejaculating penis
referred to in a house, tree, person test.
. . . .
18 A-4820-14T2
[T]hese admissions [of additional 15-year-old
victims] don't strike me as the kind of
admissions somebody makes who is just trying
to get into Avenel . . . and that's one of the
key issues here, how people look at this
particular document[.]
On the issue of conditional release into the community, Judge
Freedman found that W.T. would "clearly not be amenable" and
pointed to W.T.'s cutting off his GPS transmitter. Moreover, the
judge found that because W.T. could not follow rules and
regulations when incarcerated, "there's no reason to believe he
would do so outside."
In conclusion, Judge Freedman credited the opinions of the
State experts and found that W.T. suffers from a personality
disorder that affects him cognitively and volitionally such that
he is predisposed to engage in acts of sexual violence as
demonstrated by the rape of L.B. and his sexually-related conduct
thereafter. The judge determined that W.T. would have serious
difficulty controlling his sexually violent behavior if released
and would be highly likely in the foreseeable future to commit
sexually violent acts. The judge stated:
I find that what he "tends to do" can be very
dangerous. He hasn't been outside. He resorts
to shanks. . . . He's willing to do violence.
He's threatened people. He's engaged in
threatening conduct. [W]hat he tends to do
is very serious. He committed a very serious
sex offense. He's engaged in sexually[-]
related conduct ever since and there's no
19 A-4820-14T2
reason to believe that if he were on the street
he wouldn't be engaging in sexually violent
conduct, as well as other kind[s] of criminal
activity.
. . . .
Given the variety, and the extensiveness of
his . . . sexually-related conduct, in
prison, and at the STU, and his . . . profound
inability to control himself . . . for the
protection of the public and [W.T.] I will
commit him.
The judge committed W.T. to the STU for the protection of the
public, and for W.T. himself, because there was no question he
would be engaged in conduct that would get him into "serious and
deep trouble."
On appeal, W.T. argues that the State failed to prove he
suffers from a mental abnormality which predisposes him to commit
acts of sexual violence because his diagnosis of ASPD does not
qualify as a mental abnormality under N.J.S.A. 30:4-27.26. He
also argues that his impulsive conduct is not necessarily sexually
motivated, and the State failed to prove that any subsequent
conduct in which he may engage if released would be of a sexual
nature.
Our review of a commitment determination is extremely narrow.
R.F., supra, 217 N.J. at 174. "The judges who hear SVPA cases are
generally 'specialists' and 'their expertise in the subject' is
entitled to 'special deference.'" Ibid. (citation omitted). "The
20 A-4820-14T2
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. (citations omitted). "A trial judge is 'not
required to accept all or any part of [an] expert opinion[ ].'
The ultimate determination is 'a legal one, not a medical one,
even though it is guided by medical expert testimony.'" Ibid.
(alterations in original) (quoting In re D.C., 146 N.J. 31, 59,
61 (1996)). We should not modify the judge's determination "unless
'the record reveals a clear mistake.'" Id. at 175 (quoting D.C.,
supra, 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
State v. Johnson, 42 N.J. 146, 162 (1964)).
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 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
21 A-4820-14T2
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 In re Civil Commitment of W.Z., 173 N.J. 109, 129 (2002). 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., supra, 173 N.J. 129. Rather, the individual must
be unable to control his or her sexually violent behavior. Ibid.
The record amply supports Judge Freedman's findings that W.T.
presently suffers from a personality disorder and that as a result
of his personality disorder, it is highly likely that he will not
control his sexually violent behavior and will reoffend if not
confined to the STU for treatment. Even though W.T. 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. The State's experts opined, credibly, that as a result
of his personality disorder, it was highly likely that W.T. would
sexually reoffend if not confined to the STU for treatment.
Affirmed.
22 A-4820-14T2