IN THE MATTER OF THE CIVIL COMMITMENT OF A.D.(SVP-719-15, 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NOT FOR PUBLICATION WITHOUT THE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-5145-14T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF A.D.
SVP-719-15.
___________________________
Submitted April 4, 2017 – Decided October 27, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
719-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
T. Nicole Williams-Park, Deputy Attorney
General, on the brief).
PER CURIAM
A.D. appeals from a judgment that ordered his civil commitment
pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.
30:4-27.24 to -27.38. We affirm.
In May 2005, A.D. entered guilty pleas to two counts of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and one
count of second-degree criminal attempt to commit aggravated
sexual assault, N.J.S.A. 2C:14-2(a). These convictions arose from
the rapes of two teenage girls and the attempted assault on another
teenage girl, all occurring within a ten-week period in 2002.
In providing a factual basis for his guilty pleas, A.D.
admitted to the following. On May 8, 2002, he grabbed J.K. from
behind as she was walking on the street and dragged her into an
alley where he forced her to submit to an act of vaginal
penetration. On June 10, 2002, he encountered S.W. on the street,
dragged her a substantial distance away and committed an act of
sexual penetration upon her against her will. On July 16, 2002,
he accosted E.K., grabbed her and dragged her a substantial
distance away, where he attempted to commit an act of vaginal
penetration.
After his guilty pleas, A.D. was referred to the Adult
Diagnostic and Treatment Center (ADTC) for psychological
examination and a "determination of whether [his] conduct was
characterized by a pattern of repetitive, compulsive behavior and,
if it was, a further determination of the offender's amenability
to sex offender treatment and willingness to participate in such
treatment." N.J.S.A. 2C:47-1. The examining psychologist, Dr.
2 A-5145-14T2
Mark Frank, reported that A.D. accepted responsibility for the two
rapes but denied using a gun, as alleged by the victim of the
first rape, and, despite his guilty plea, denied responsibility
for the attempted aggravated sexual assault. A.D. explained the
prosecutor threatened to withdraw the plea offer unless he entered
guilty pleas to all three offenses. The ADTC report states A.D.
"described himself as an alcoholic" and found "it difficult to
control his sex drive when he drinks." He stated the rapes
occurred when "he forced the women to submit to previously agreed
upon sexual relations after they changed their minds and no longer
wished to proceed."
A.D. believed he had "an inordinately strong sexual drive."
Dr. Frank reported:
From [A.D.'s] description, he experiences
heightened sexual arousal under circumstances
in which he is exerting dominance and control
over his partners. He would find it highly
arousing to cheat and manipulate prostitutes.
At times, he would pay them for sex and then
rob them of the money he gave them after the
sex act was completed. On other occasions,
he[] drove prostitutes to remote locations and
forced them to have sex with him without
payment or risk being kicked out of his
vehicle and abandoned far from home.
[A.D.] described similar feelings of arousal
connected to the coercive elements of his
behavior in the instant offenses. "You do
feel powerful," he said. "It makes you feel
dominant. I might have these thoughts when I
was sober, like forcing people to do things.
3 A-5145-14T2
But once I get intoxicated, it takes over and
makes you go ahead and do them." Although he
reportedly felt guilty following the incident
with J.K. and promised himself he would never
do anything like that again, he subsequently
engaged in similar behavior with S.W.
A.D. told Dr. Frank he believed he was likely to similarly
reoffend in the future if he did not have successful psychotherapy.
Dr. Frank found the requisite elements of repetitive and compulsive
behavior for A.D. to be sentenced under the New Jersey Sex Offender
Act, and concluded, "Although the prognosis is guarded, [A.D.] is
potentially amenable to treatment and he said he would be willing
to participate fully" in the ADTC program.
A.D. was sentenced in 2005 to concurrent fifteen-year terms
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
to be served at the ADTC, community supervision for life, a five-
year term of parole supervision, Megan's Law requirements,
N.J.S.A. 2C:7-2, and appropriate fines and penalties.
At the time he was discharged from the ADTC, A.D.'s last
therapist opined that his participation in treatment had been
variable. The therapist reported A.D. "was described as having
limited motivation and not being invested in treatment" and that
he "has not addressed the 'adrenaline rush' he felt when he raped."
A.D.'s score on the Static-99R, which is used to estimate risk for
sexual reoffending, suggested he is Low-Moderate Risk.
4 A-5145-14T2
In April 2015, the State filed a petition to have A.D. civilly
committed under the SVPA.
The SVPA provides for the involuntary civil commitment of "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." N.J.S.A. 30:4-27.26.
"SVPA commitment is limited to those who are highly likely
to sexually reoffend." In re Civil Commitment of R.F., 217 N.J.
152, 173 (2014). To satisfy the statutory requirements, the State
must prove three elements by clear and convincing evidence. Ibid.;
N.J.S.A. 30:4-27.32(a). First, the State must prove the individual
has been convicted of a sexually violent offense. N.J.S.A. 30:4-
27.26. The statutory definition of a "sexually violent offense,"
includes aggravated sexual assault and an attempt to commit an
aggravated sexual assault, N.J.S.A. 30:4-27.26(a). The second
required element is that the individual suffers from a mental
abnormality or personality disorder. N.J.S.A. 30:4-27.26.
Finally, the State must prove 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
5 A-5145-14T2
reoffend." R.F., supra, 217 N.J. at 173 (quoting In re Commitment
of W.Z., 173 N.J. 109, 130 (2002)).
At the hearing conducted on the State's petition, the State
presented the testimony of a psychiatrist, Dr. Roger Harris, and
a psychologist, Dr. Christine Zavalis. A.D. presented testimony
from a psychologist, Dr. Gianni Pirelli. All three experts
diagnosed A.D. with paraphilic disorder, non-consent.
Dr. Harris stated his diagnosis of "other specified
paraphilic disorder for coercion" was appropriate based on A.D.'s
"self-report to multiple clinicians" that he used sex as a coping
mechanism, "got pleasure from exerting his dominance and control
over others," "was aroused to cheat and manipulate, . . . felt
like a man finally when he could not feel like a man in any other
aspect of his life, . . . [and] felt strong and powerful."
Although A.D. was living with a woman and had children with her,
"consensual sex was really inadequate for him to sustain and feel
like a powerful, important person, . . . he needed the other
arousal pattern to feel like a man and to sustain himself." This
was manifested by his gratifying himself in the offenses he
admitted and in his manipulation and cheating of prostitutes. Dr.
Harris also diagnosed an antisocial personality disorder based
upon A.D.'s "clear pattern of a pervasive disregard and . . .
violation for [sic] the rights of others." Dr. Harris opined that
6 A-5145-14T2
these conditions predisposed A.D. to sexual violence and that he
would have serious difficulty in controlling his sexual offending
behavior. Dr. Harris did not believe that A.D.'s Static-99 score
accurately reflected the actual risk posed by him because his risk
to sexually reoffend was increased by his paraphilia, antisocial
attitudes and behaviors, poor cognitive problem solving and poor
self-regulation. Dr. Harris concluded that A.D. met the criteria
for civil commitment under the SVPA and "would be highly likely
to sexually reoffend if placed in a less restrictive setting."
Dr. Zavalis found it significant that A.D. committed "three
offenses over an approximately two-month period, which . . .
suggest[ed] that it was something that was gratifying to him that
he wanted to repeat, and that he didn't wait that long to do that."
She also found the discrepancies between the versions of events
given by A.D. and his victims significant as indicating he did not
take full responsibility for his behavior. However, Dr. Zavalis
also cited the behavior as described by A.D. – raping the two
teenagers in retribution after they reneged on their offers of sex
for drugs and his behavior involving prostitutes – as risk factors
in his sexual offending history.
Dr. Zavalis found A.D. was "a really poor historian and not
particularly credible." A.D. admitted lying in the past to get a
certain outcome, such as malingering psychiatric symptoms in order
7 A-5145-14T2
to be sent to a hospital and placed on medication to reduce his
prison sentence and also lying about his offending history related
to his behavior towards prostitutes in order to be sent to ADTC
as opposed to a regular prison. However, he also lied "across a
number of domains . . . [e]ven in things that really wouldn't be
significant and that there wouldn't be a personal motive or a
benefit to him to lie about."
Dr. Zavalis concurred that the Static-99R score
underestimated A.D.'s risk to reoffend because it did not take
into account factors such as his antisocial personality traits,
his deviant arousal, poor coping skills, hostility toward women,
history of: poor judgment, substance abuse, negative emotionality
and aggression, sexual preoccupation and hypersexuality.
Dr. Zavalis stated A.D.'s response to treatment at the ADTC
was poor and that, although he realized the role alcohol played
in his life, he had attended Alcoholics Anonymous for only a few
months in 2013.
Dr. Zavalis concluded that A.D. suffers from a mental
abnormality or personality disorder that would predispose him to
sexually reoffend, based upon her diagnoses of Other Specified
Paraphilia Disorder (non-consent with sadistic features), Other
Specified Personality Disorder (with antisocial features), Alcohol
Use Disorder (severe) (in a controlled environment) and Cannabis
8 A-5145-14T2
Use Disorder (mild) (in sustained remission). She believed these
conditions would predispose him to sexual violence and that he
would have serious difficulty controlling his sexual offending
behavior if released and not committed for treatment. She
recounted a number of factors she considered in her risk assessment
and concluded A.D. was "highly likely" to reoffend if not
committed.
Dr. Pirelli administered a Personality Assessment Inventory
to A.D. which, he concluded, produced invalid results because A.D.
"rush[ed] through the testing" and "did not appear to be attending
well to the items." A.D.'s results on the Minnesota Multiphasic
Personality Inventory – 2 Restructured Form (MMPI-2-RF), a self-
report measure, reflected elevations on the Antisocial Behavior
and Substance Abuse scales. Dr. Pirelli noted that on the Risk
for Sexual Violence Protocol (RSVP), A.D. showed a number of risk
factors that were particularly relevant: "the use of psychological
and physical coercion in his commission of sexual violence; his
previously endorsed attitudes that supported/condoned sexual
violence; problems with stress/coping; and problems resulting from
child abuse."
Dr. Pirelli stated,
Of note is that it is unclear if [A.D.] is
exhibit[ing] minimization and/or denial about
his sexual offense history; namely, he reports
9 A-5145-14T2
that he did not use a gun during the commission
of one of his sexual assaults and he denies
committing the third sexual offense. He has
maintained this position for at least 10
years, across evaluators, but such is in
contrast to police and court records.
Dr. Pirelli noted that A.D.'s sexual deviance and substance
abuse related to his psychological functioning.
Dr. Pirelli also identified "protective factors." There was
no evidence of "diversity or escalation in his sexual violence"
but, because A.D. was apprehended within a narrow time frame, it
was unclear if the offenses were "suggestive of chronicity of
violence." He also noted A.D. no longer condoned sexual violence,
had gained some insight, developed coping mechanisms through sex
offender specific treatment and was amenable to further treatment.
In addition, A.D. did not present with severe mental illness or
violent ideation.
Turning to the criteria for classification as a sexually
violent predator, Dr. Pirelli concluded A.D. met the criteria for
Other Specified Paraphilic Disorder, which predisposed him to
commit acts of sexual violence. He opined, however, that his
experience of such symptoms had dissipated over the years.
Although A.D.'s "mental health conditions would significantly
impair his volitional capacity should he be actively experiencing
them," Dr. Pirelli found those conditions were not impacting his
10 A-5145-14T2
volitional capacity because he had not been under the influence
of alcohol since his arrest and "his Paraphilic Disorder has been
largely controlled for some time." Dr. Pirelli concluded that
A.D. "warrants continued, mandated intensive interventions to
manage his risk of sexually re-offending." Although A.D. posed
"a significant risk" if released to the community "in the absence
of a highly structured discharge plan," Dr. Pirelli opined that
his treatment needs could be met in the community.
The trial court found all three elements necessary for
commitment under the SVPA were proven by clear and convincing
evidence. The court reviewed in depth the evidence and made
specific findings regarding the relative credibility of the
experts. The court acknowledged that A.D. had experienced some
benefit from treatment but that the benefit was insufficient to
make it "less than highly likely" he would reoffend if released
on conditional discharge. Accordingly, the trial court entered
an order committing A.D. to the Special Treatment Unit, with such
commitment to be reviewed in one year.
A.D.'s guilty pleas more than amply prove he was convicted
of sexually violent offenses. In his appeal, A.D. challenges the
trial court's conclusion that the remaining two elements were met,
presenting the following arguments for our consideration:
11 A-5145-14T2
POINT I
THE TRIAL COURT IGNORED ESTABLISHED
CASE LAW AND DUE PROCESS PROTECTIONS
WHEN IT ADMITTED INTO EVIDENCE
INADMISSIBLE HEARSAY TESTIMONY,
PRESENTED UNDER THE GUISE THAT THIS
HEARSAY WAS NECESSARY TO SUPPORT THE
TESTIMONY OF THE STATE'S EXPERTS,
AND THEN BASED ITS OWN FINDINGS AND
CONCLUSIONS ON THAT INADMISSIBLE
HEARSAY.
POINT II
THE TRIAL COURT ERRED IN FINDING
A.D. WAS PRESENTLY HIGHY LIKELY TO
COMMIT A SEXUAL OFFENSE BECAUSE THE
TESTIMONY PRESENTED DID NOT PROVIDE
A BASIS FOR A FINDING OF A PRESENT
RISK TO SEXUALLY REOFFEND.
Our review of the trial court's "commitment determination is
extremely narrow." In re D.C., 146 N.J. 31, 58 (1996). This is
so, in part, because "[t]he judges who hear SVPA cases generally
are 'specialists' and 'their expertise in the subject' is entitled
to 'special deference.'" R.F., supra, 217 N.J. at 174 (quoting
In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App.
Div. 2007)). We "should not modify a trial court's determination
either to commit or release an individual unless 'the record
reveals a clear mistake,'" R.F., supra, 217 N.J. at 175 (quoting
D.C., supra, 146 N.J. at 58), provided "the trial court's findings
are supported by 'sufficient credible evidence present in the
record.'" Ibid.
12 A-5145-14T2
There is sufficient credible evidence in the record to support
the trial court's findings. A.D. admitted to the forcible rapes
of two teenage girls. Although he later denied committing the
third offense, he provided an adequate factual basis for the
attempted aggravated sexual assault and so, the record supports a
finding that he committed three sexually violent offenses within
a short period of time.
All three experts concluded he suffered from a personality
disorder that predisposed him to sexual violence and affected his
ability to control such behavior. Indeed, A.D. admitted to being
sexually aroused by raping women, that it gave him an "adrenaline
rush."
Both Dr. Harris and Dr. Zavalis opined that A.D. was highly
likely to reoffend if released and supported their conclusions
with facts from the record, which were largely dependent upon
A.D.'s own admissions. Although A.D. derived some benefit from
treatment, he also manifested a lack of responsiveness to
treatment. Most notably, despite his contention that his sexual
violence was linked to his alcoholism, A.D. failed to show a
commitment to recovery.
Dr. Pirelli acknowledged A.D. posed a significant risk of
sexually re-offending and required "continued, mandated intensive
interventions to manage his risk of sexually re-offending." The
13 A-5145-14T2
trial court was not required to accept his conclusion that A.D.'s
treatment needs could be adequately addressed in the community.
See D.C., supra, 146 N.J. at 61. In concluding A.D.'s mental
conditions did not impact his capacity to refrain from sexual
violence, Dr. Pirelli relied upon the fact that A.D. had not been
under the influence of alcohol since his arrest and that his
Paraphilic Disorder had "been largely controlled for some time."
The probative force of this opinion is substantially undercut by
the fact that A.D. has been incarcerated since his arrest and
therefore unable to get under the influence of alcohol or act on
his Paraphilic Disorder. The trial court's determinations to give
greater weight to the expert opinions of Dr. Harris and Dr. Zavalis
and to reject Dr. Pirelli's opinion have reasonable support in the
record.
There is more than adequate evidence to support the trial
court's findings.
A.D. argues, nonetheless, that his commitment must be
reversed because the State's experts and the trial court relied
upon hearsay evidence to accept facts relating to the offenses
that he denied, namely, that he used a gun and that he committed
the attempted aggravated sexual assault. This argument merits
only limited discussion.
14 A-5145-14T2
First, even if the facts of the underlying offenses are
filtered by A.D.'s subsequent denials, he admitted to two forcible
rapes. In providing a factual basis for his guilty plea, he
testified that he committed the attempted aggravated sexual
assault. Whether he used a gun in committing any of these acts
is not essential to any finding that he committed sexually violent
offenses and has little, if any, bearing as to the other elements
the State was required to prove.
The State's experts relied heavily upon A.D.'s own admissions
to support their conclusions. Although they reviewed his denials
regarding a weapon and the third offense, their discussion of the
facts denied by A.D. was mainly related to an assessment of his
credibility. Their credibility evaluation was not dependent upon
facts he denied. As Dr. Zavalis observed, A.D. made a number of
other statements that undermined his credibility, including his
admission he had lied on other matters because he believed it
would secure an advantage for him. Even Dr. Pirelli commented
that A.D.'s denials, which were contradicted by police reports and
court records, might be a function of A.D.'s minimization and
denial about his sexual offense history. The opinions of the
State's experts were not compromised in any way by the references
to the allegations that A.D. used a weapon or his admitted guilt
on the third offense.
15 A-5145-14T2
A.D. also argues the trial court erred in finding he used a
gun in one of the rapes and threatened the use of a gun in the
attempt. We agree that the trial court should not have made
findings of fact that were not admitted by A.D. based upon hearsay
evidence. See In re Civil Commitment of A.E.F., 377 N.J. Super.
473, 490 (App. Div.), certif. denied, 185 N.J. 393 (2005).
However, as we have noted, whether A.D. used a gun was not germane
to proof of any of the elements the State was required to prove.
There was more than adequate evidence to support the trial court's
conclusion that commitment was appropriate here.
Affirmed.
16 A-5145-14T2