IN THE MATTER OF THE CIVIL COMMITMENT OF A.B. (SVP-603-11, 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NOT FOR PUBLICATION WITHOUT THE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-5034-17T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF A.B.,
SVP-603-11.
_____________________________

Argued May 14, 2019 – Decided May 24, 2019

Before Judges Fisher, Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-603-11.

Patrick Madden, Assistant Deputy Public Defender,
argued the cause for appellant A.B. (Joseph E. Krakora,
Public Defender, attorney).

Francis X. Baker, Deputy Attorney General, argued the
cause for respondent State of New Jersey (Gurbir S.
Grewal, Attorney General, attorney).

PER CURIAM

A.B. appeals from a judgment entered on June 25, 2018, that continued

his commitment to the Special Treatment Unit (STU) after a review hearing held

pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -

27.38. We affirm.
 In 1989, when appellant was seventeen, he raped a sixty-four-year-old

woman at knife point because he had a "problem" with her grandson. He pleaded

guilty to aggravated sexual assault with a weapon, making a terroristic threat,

unlawful possession of a weapon, and possession of a weapon for an unlawful

purpose. He was sentenced to fifteen years in prison with five years of parole

ineligibility.

When appellant was released, he did not comply with requirements to

register as a sex offender, or otherwise comply with the community supervision

for life requirements under Megan's Law.1 Within five months of his release,

appellant sexually assaulted a five-year-old female in a school where he was

working as a volunteer. While released on bail for that offense, he allegedly

raped a seventy-five-year-old woman in her motel room, threatening to kill her

if she made a sound. She died of unrelated causes before trial, and those criminal

charges were dismissed.

He was convicted at trial of the offenses involving the child, which

included second-degree kidnapping, third-degree aggravated criminal sexual

contact and third-degree endangering the welfare of a child. He pleaded guilty

to failing to register as a sex offender or to give notice of his change in address.

1
N.J.S.A. 2C:7-1 to -23.
A-5034-17T5
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Appellant was sentenced to fifteen years in prison with ten years of parole

ineligibility.

While incarcerated, he committed disciplinary infractions, some of which

included sexual acts, unauthorized contacts and threats. He received eight

modified placements while in STU. The most recent, in April 2017, involved

an alleged statement by appellant that he "knew the address of a female staff

member, which was interpreted as a veiled threat against a staff member who

had previously redirected him." Appellant denied making this statement. He

also was observed "dropping contraband out of the port in his cell door" that

may have been drugs.

We affirmed his 2011 civil commitment under the SVPA. 2 Subsequent

review hearings have continued his commitment to STU. Appellant appeals the

June 25, 2018 judgment entered after the June 1, 2018 review hearing.

Involuntary civil commitment under the SVPA can follow completion of

a custodial sentence 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."

2
IMO Civil Commitment of A.B., SVP-603-11, A-4488-10 (App. Div.
November 21, 2014).

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N.J.S.A. 30:4-27.26. The SVPA defines "mental abnormality" as "a mental

condition that affects a person's emotional, cognitive or volitional capacity in a

manner that predisposes that person to commit acts of sexual violence." Ibid.

The mental abnormality or personality disorder "must affect an individual's

ability to control his or her sexually harmful conduct." IMO Commitment of

W.Z., 173 N.J. 109, 127 (2002).

At an SVPA commitment hearing, the State has the burden of proving the

offender poses a threat "to the health and safety of others because of the

likelihood of his or her engaging in sexually violent acts." Id. at 132. "[T]he

State must prove that threat by demonstrating that the individual has serious

difficulty in controlling sexually harmful behavior such that it is highly likely

that he or she will not control his or her sexually violent behavior and will

reoffend." Ibid.

To commit or continue the commitment of the individual to the STU, the

State must establish by clear and convincing evidence that it is highly likely the

individual will sexually reoffend within the reasonably foreseeable future. Id.

at 130-32; see also IMO Civil Commitment of R.F., 217 N.J. 152, 173 (2014).

Because commitment under the SVPA is based on "present serious difficulty

with control over dangerous sexual behavior, . . . [the] annual court review

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hearings on the need for continued involuntary commitment" require an

assessment of "fresh information concerning the committee's dangerousness."

W.Z., 173 N.J. at 132-33.

At the June 2018 review hearing, Dr. Marta Scott, a psychiatrist, testified

that in the past, appellant "denied almost everything" or would "minimize,"

which was "a manifestation of his antisocial disorder." During the seven years

in STU, appellant made "slight progress," which meant there was "some

reduction in his risk," but he had not "internalized" the treatment. She testified

appellant "demonstrate[d] a longstanding pattern of . . . maladaptive behaviors"

and would not be able to comply with conditions if released.

Dr. Scott diagnosed appellant with "Other Specified Paraphilic Disorder,

(nonconsent type)," meaning that he "experiences recurrent and intense

fantasies, urges, and/or behavior involving sexual arousal to forced sexual

behavior." She diagnosed him with "Antisocial Personality Disorder," which

refers to his "failure to conform to social norms with respect to lawful behaviors

by repeatedly performing acts that are grounds for arrest . . . ." For appellant,

the antisocial personality "manifests itself sexually." The combination of the

two diagnoses predisposes appellant to "committing a sexually violent act as

defined by [the SVPA]." This "increases the risk of recidivism."

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 Dr. Scott scored appellant with a seven on the Static-99R test,3 which

placed him at a risk level "well above average risk range." She recognized that

over the past year, appellant was on a "more positive trajectory," but his

understanding of sex offender treatment remained "elementary"; he had not

learned the "tools necessary to help him stop himself from acting upon . . .

impulses" and his antisocial behavior "was still there."

Dr. Scott's opinion was that appellant "continues to suffer from a mental

abnormality that affects his cognitive, emotional and volitional capacity in a

manner that results in serious difficulty with controlling his sexually dangerous

behavior and predisposes him to commit future acts of sexual violence." She

considered appellant "to be at high risk to reoffend if not confined to a secure

treatment facility such as the STU."

Dr.Laura Carmignani, a psychologist, testified that appellant had made

some improvement in the past year, but remained in the "elementary" stage of

understanding release prevention strategies. The STU treatment review report

stated that appellant had "significant difficulty with the relapse prevention . . .

3
"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)).
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modules." Given his diagnoses of paraphilic disorder (nonconsent type) and

antisocial personality disorder, Dr. Carmignani testified that appellant had the

"potential to act aggressively but through sexual means," and that he remained

at high risk to reoffend.

His PCL-R score,4 was high, showing appellant met "the clinical threshold

for psychopathy." If released, Dr. Carmignani testified appellant would not

likely comply with the conditions of his release. The report stated that appellant

had "yet to significantly lower his risk of recidivism" and that he "remains highly

likely to engage in acts of sexual violence if not confined to the STU."

Dr. Christopher Lorah, a psychologist testifying for appellant, stated that

his "risk in the community could be managed successfully with a conditional

discharge." Dr. Lorah based this opinion on appellant's "behavior stability" for

the past year. He recommended the immediate commencement of discharge

planning for the next year. During that time, appellant should be given furloughs

and there should be polygraphs to evaluate his behavior. Appellant's conditions

of release should include mandatory sex offender treatment, polygraph

examinations, random urinalysis, GPS monitoring, parole home visits and no

4
PCL-R stands for the Psychopathy Checklist-Revised Test, which measures
an individual's psychopathy and helps predict future violence. See Trantino v.
N.J. State Parole Bd., 166 N.J. 113, 162 (2001).
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contact with underage children. His internet and phone should be monitored.

Appellant's 2017 modified placement, where he allegedly obtained the address

of a female staff member, did not change Dr. Lorah's opinion because, in his

view, this did not affect his potential for sexual recidivism. Dr. Lorah

acknowledged that appellant was not appropriate for immediate community

discharge because he "would need to see . . . the furlough process and some

change." Dr. Lorah testified that appellant understood relapse prevention

techniques. He said there was an "absolute possibility that [appellant] could

sexually reoffend" if he became angry, but he believed that appellant had gained

the knowledge and the experience necessary to control these urges.

The court found no dispute that appellant "suffers from a mental

abnormality and a personality disorder," and that these individually and in

combination "predispose[] him to engage in acts of sexual violence . . . ."

However, the court rejected as premature the recommendation by Dr. Lorah that

appellant was capable of a conditional discharge with a one-year set of

furloughs. In the court's view, Dr. Lorah "placed too much emphasis on

[appellant's] progress" and "maybe stretched his position." The court found the

record supported the State's experts and he credited their opinions that, although

appellant was making progress, he still posed a high risk of reoffending and

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should remain committed. The court concluded it would be premature to release

appellant, and could not find that he would comply with conditions if released

on conditional discharge. The court found that appellant "would have serious

difficulty controlling his sexually violent behavior and would be highly likely

within the reasonably foreseeable future . . . to engage in acts of . . . sexual

violence." Balancing what appellant "tends to do" against "his propensity for

doing it, [he is] clearly still a dangerous person."

On appeal, appellant contends that the court erred by continuing his

commitment to STU under the SVPA, because he alleges he is not highly likely

to reoffend.

Our scope of review of judgments in SVPA commitment cases 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 generally are '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

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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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597

(2009).

There was ample evidence to support the court's finding that it was

premature to release appellant because he was a sexually violent predator within

the SVPA, who remains highly likely to reoffend unless he is civilly committed

to STU. All the experts diagnosed appellant with specified paraphilic disorder,

(nonconsent type), and an antisocial personality disorder. Drs. Scott and

Carmignani testified these disorders predisposed appellant to an "increase[d]

risk of recidivism." Dr. Lorah agreed that with these combined diagnoses

"people in the community fail more quickly." He did not favor immediate

release; Dr. Lorah testified that he needed to see what happened with appellant

during furloughs. He testified he wanted to see "some change," but he did not

say what needed to be changed.

There was testimony that in the eight years appellant was at STU, he

required multiple modified placements. The most recent one in 2017 involved

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an allegation that appellant obtained the address of a female member of the staff

who had redirected him. This was interpreted as a threat. Appellant had

achieved only an elementary level of knowledge about relapse prevention and

remained at high risk of reoffending, according to the State's experts. The court

was permitted to credit the opinions of the State's experts, who unequivocally

opined that appellant was highly likely to reoffend, and not appellant's expert,

who the judge viewed as having "stretched" his opinion about release. See

Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961)

(recognizing the fact-finder's prerogative to accept the opinions of certain

testifying experts and to reject competing opinions of an opposing expert).

Accordingly, there is no basis for reversal on this record.

Affirmed.

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