IN THE MATTER OF THE CIVIL COMMITMENT OF E.C., SVP-14-99 (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NOT FOR PUBLICATION WITHOUT THE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-0390-16T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
E.C. SVP-14-99.
_________________________________

Submitted October 4, 2018 – Decided November 7, 2018

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-14-99.

Joseph E. Krakora, Public Defender, attorney for
appellant E.C. (Nancy C. Hayes, Designated Counsel,
on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey (Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, E.C., appeals from an August 9, 2016 order continuing his

involuntary commitment to the Special Treatment Unit (STU) pursuant to the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We

affirm.

E.C. is a sixty-five-year-old man with a significant history of sexually

violent acts. We have previously outlined E.C.'s criminal history in In re Civil

Commitment of E.C., No. A-0810-09 (App. Div. Feb. 11, 2010) (slip op. at 1),

and only reiterate the procedural history here.

On October 8, 1999, E.C. was committed to the STU pursuant to the

State's petition. E.C. has had numerous review hearings since his original

commitment in 2000. His most recent hearing, the subject of this appeal, began

in 2016.

During the proceeding before Judge James F. Mulvihill, the State

presented the expert testimony of psychiatrist Roger Harris, M.D., and

psychologist Debra Roquet, Pys.D. E.C. presented the expert testimony of

psychiatrist Daniel Greenfield, M.D.

Dr. Harris noted E.C. scored a six on the Static-99R actuarial tool, which

corresponds to a high risk of recidivism in the context of violent sexual crimes.

Dr. Harris testified E.C. has a history of violent sexual crimes, including

reoffending shortly after his release from confinement. Dr. Harris also testified

E.C. suffers from antisocial personality disorder, paraphilic disorder to coercion

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with sadistic traits, and multiple substance abuse disorders. He noted E.C. has

made progress in certain treatment modules at STU, however, E.C. has not yet

internalized and applied enough of the treatment to reduce his risk to reoffend.

Dr. Roquet was a member of the Treatment Progress Committee that

conducted its annual evaluation of E.C. and recommended E.C. remain in Phase

3B of treatment because of concerns about his antisocial personality traits,

which pose a risk for reoffending. Dr. Roquet testified E.C. received a score of

29.5 on the PCL-R actuarial tool, indicating he is high in the range of behaviors

consistent with psychopathy. Like Dr. Harris, Dr. Roquet scored E.C. at six on

the STATIC-99R actuarial tool and diagnosed E.C. with specified paraphilic

disorder to non-consent with sadistic elements, antisocial personality disorder,

and multiple substance abuse disorders. Dr. Roquet testified E.C. is involved in

treatment; however, he exhibits little progress with respect to his deviant sexual

arousal. She opined E.C. is highly likely to reoffend.

Dr. Greenfield supported the conditional release of E.C. believing E.C.

could be managed through continued outpatient treatment. Dr. Greenfield stated

E.C. has responded well to treatment and opined E.C.'s past criminal sexual

history is too old to predict E.C.'s future behavior. Dr. Greenfield diagnosed

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E.C. with paraphilic disorder, which predisposes E.C. to sexually offend, but he

opined E.C. was not likely to revert back or experience this again.

On August 9, 2016, Judge Mulvihill concluded the State had proven, by

clear and convincing evidence, all of the required elements under SVPA to

continue E.C.'s involuntary civil commitment to the STU for control, care, and

treatment. He noted while E.C. has made progress in treatment, he has not made

sufficient progress to substantially reduce his risk to recidivate if released.

Judge Mulvihill found Dr. Harris extremely credible and he had testified E.C.

suffers from a mental abnormality personality disorder, is predisposed to sexual

violence, and has serious difficulty controlling his sexually violent behavior.

Judge Mulvihill also found Dr. Roquet very credible after she testified E.C. is

making progress in his treatment, but he is still highly likely to sexually

reoffend.

Judge Mulvihill found defense expert Dr. Greenfield credible, but

disagreed with Dr. Greenfield's assessment. The judge concluded based on the

testimony, E.C. "continues to suffer from a mental abnormality personality

disorder that does not spontaneously remit; [a]ffects him emotionally,

cognitively and volitionally." The judge further found E.C. was predispo sed to

sexual violence, had serious difficulty controlling his sexually violent behavior,

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and was highly likely to sexually reoffend. Judge Mulvihill signed an order

reflecting his determination on August 9, 2016 and ordered a review hearing for

July 20, 2017. This appeal followed.

E.C. argues the following point on appeal.

THE STATE FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT RESPONDENT
E.C. IS A SEXUALLY VIOLENT PREDATOR AND
THAT THE RISK OF FUTURE RECIDIVISM IS AT
A SUFFICENTLY HIGH LEVEL TO JUSTIFY
CONTINUED CIVIL COMMITMENT UNDER THE
CURRENT TREATMENT PLAN.

Our scope of review of a SVPA commitment trial "is extremely narrow."

In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014) (quoting In re D.C.,

146 N.J. 31, 58 (1996)). We must "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)). Moreover, "[t]he 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 thus accord a trial

court's determination substantial deference; such a decision may "be modified

only if the record reveals a clear mistake." D.C., 146 N.J. at 58.

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 Under the SVPA, "[i]f the court finds by clear and convincing evidence

that the person needs continued involuntary commitment as a sexually violent

predator, it shall issue an order authorizing the involuntary commitment of the

person to a facility designated for the custody, care and treatment of sexually

violent predators." N.J.S.A. 30:4-27.32(a). To classify a person as a sexually

violent predator, the State must prove:

(1) that the individual has been convicted of a sexually
violent offense; (2) that he [or she] suffers from a
mental abnormality or personality disorder; and (3) that
as a result of his [or her] psychiatric abnormality or
disorder, "it is highly likely that the individual will not
control his or her sexually violent behavior and will
reoffend[.]"

[R.F., 217 N.J. at 173 (citations omitted) (quoting In re
Commitment of W.Z., 173 N.J. 109, 130 (2002))].

See also N.J.S.A. 30:4-27.26 (enumerating the three requirements).

On appeal, E.C. argues the State did not meet its burden of proving by

clear and convincing evidence that E.C. was a sexually violent predator and

posed a sufficient risk of future recidivism to justify continued civil

commitment. We disagree.

E.C.'s numerous convictions fall under the definition of "sexually violent

offenses" set forth in N.J.S.A. 30:4-27.26. While E.C. only refers to his 1981

and 1984 offenses, the 1981 sexual assault alone is sufficient to satisfy the first

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prong of SVPA. E.C. argues he was not convicted of any sexually violent

offense since 1984, and while this is true, there is nothing in SVPA to suggest

time mitigates the commission of a sexually violent offense. See N.J.S.A. 30:4-

27.26. Accordingly, the trial court correctly found E.C. meets the first prong of

SVPA by clear and convincing evidence.

The second prong of SVPA requires a person must suffer from a mental

abnormality or personality disorder in order to be adjudicated a sexually violent

predator. N.J.S.A. 30:4-27.26. "[T]he mental condition must affect an

individual's ability to control his or her sexually harmful conduct." W.Z., 173

N.J. at 127.

Here, all three experts testified E.C. was suffering from paraphilic

disorder. Accordingly, the second prong of the SVPA was satisfied by clear and

convincing evidence.

The third prong of the test requires the court to determine whether "the

individual poses a threat to the health and safety of others, which is established

upon proof by clear and convincing evidence that he or she has serious difficulty

in controlling his or her harmful behavior such that it is highly likely that [he]

will not control his or her sexually violent behavior and will reoffend" by

committing acts of sexual violence. R.F., 217 N.J. at 186; see also W.Z., 173

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N.J. at 130. In determining the likelihood of future sexually violent acts, courts

are entitled to rely on a petitioner's inability to control dangerous sexual

behaviors. W.Z., 173 N.J. at 132.

Based on the testimony at the hearing, Judge Mulvihill found E.C. is

highly likely to engage in acts of sexual violence if not confined to a secure

facility for further control and treatment. In determining E.C.'s risk of

recidivism, experts considered E.C.'s offenses as both a juvenile and an adult,

offenses after being released, high actuarial scores, and dynamic risk factors. In

their reports and at trial, Drs. Harris and Roquet noted E.C.'s conditions predispose

him to sexual violence, and he is highly likely to reoffend unless confined in a secure

facility for treatment. The court relied on this evidence and testimony, finding the

experts to be credible.

Accordingly, we conclude the record supports the trial court's

determination that each of the elements under the SVPA were proven by clear

and convincing evidence.

Affirmed.

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