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NOT FOR PUBLICATION WITHOUT THE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