RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0895-17T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF A.R., SVP-746-16.
________________________________
Argued March 22, 2018 – Decided July 10, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
746-16.
Patrick F. Madden, Assistant Deputy Public
Defender, argued the cause for appellant
A.R. (Joseph E. Krakora, Public Defender,
attorney).
Nicholas Logothetis, Deputy Attorney
General, argued the cause for respondent
State of New Jersey (Gurbir S. Grewal,
Attorney General, attorney).
PER CURIAM
A.R. appeals from the October 6, 2017 order of the Law
Division, continuing his commitment to the Special Treatment
Unit (STU), the secure facility designated for the custody, care
and treatment of sexually violent predators pursuant to the
Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -
27.38. For the reasons that follow, we affirm.
A.R., who is now forty-four years old, committed his first
non-violent sexual offense in 1995 and was sentenced to three
years of probation for sexually touching two women in a park.
While on probation, he committed three additional non-violent
sexual offenses against other female victims from 1996 to 1998,
each resulting in additional sentences to probation. In 2003,
A.R. raped a thirteen-year-old girl at knifepoint in her home
while her father was at work. He later admitted that he knew
the family and often saw the young victim when he used to work
with her father.
In 2004, A.R. pled guilty to aggravated sexual assault with
a weapon and was sentenced to a fifteen year prison term and
community supervision for life (CSL), and required to comply
with the provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23.
A.R. initially was evaluated at the Adult Diagnostic and
Treatment Center at Avenel (ADTC) but was found ineligible to
serve his sentence at the facility. Later, A.R. was transferred
to and received treatment at the ADTC from August 2011 until
March 2015, where "[h]e attended groups and focused issues
around family background and dysfunction and criminal
attitudes." A.R. later withdrew from treatment for some time in
2 A-0895-17T5
2012, and upon his return to the facility, he was placed on
Level 3 of the treatment. Prior to his release, the State
applied for A.R. to be civilly committed under the SVPA and on
October 4, 2016, the Law Division civilly committed him to the
STU.
On October 6, 2017, Judge Vincent N. Falcetano, conducted
A.R.'s first review hearing, which is the subject of this
appeal. At the hearing, A.R. did not challenge the fact he
committed the requisite sexually violent criminal offense or
suffered from a mental abnormality or personality disorder which
predisposes him to commit acts of sexual violence.1 The focus of
1
The Supreme Court has explained the proofs required at the
initial hearing and subsequent reviews as follows:
At the commitment hearing, the State must
establish three elements: (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, this Court interpreted the third
statutory element as requiring the State to
show that a person is "highly likely," not
just "likely," to sexually reoffend.
(continued)
3 A-0895-17T5
the trial was the third required finding that A.R. is highly
likely to reoffend.
At the hearing, the State relied on the unrefuted expert
testimony of psychiatrist Roger Harris, M.D., who opined that
A.R.'s risk to sexually reoffend remained high. Because A.R.
elected not to participate in the evaluation, Harris was unable
to interview A.R. However, the doctor prepared a report on
September 11, 2017, based upon his review of clinical
certificates, presentence reports, prior Treatment Progress
Review Committee (TPRC) reports, STU treatment records, and
related documents, which were admitted into evidence. The State
also admitted into evidence without objection a report prepared
by Debra Roquet, Psy. D., a member of the STU's TPRC, which
largely supported Harris's findings and conclusions. Both
Harris and Roquet addressed the likelihood of A.R. reoffending
if he was no longer committed.
Harris's report highlighted A.R.'s prior sexual offenses
and stated that several involved young girls and children, and
were "frotteuristic or exhibitionistic in nature." He also
reported that many years after the 2003 offense, A.R. admitted
(continued)
[In re Civil Commitment of R.F., 217 N.J.
152, 173 (2014) (citations omitted).]
4 A-0895-17T5
to three separate doctors his attraction to the thirteen-year-
old girl, and that he had a "tendency to seek out vulnerable
persons," which "made him feel powerful."
Harris testified that A.R.'s sex offending history
demonstrated that he is unable to control his sexual drive "in
spite of his convictions and losing his liberty." He also noted
that empirical data shows that those who violate parole, as A.R.
had in the past, had an "increase[d] . . . risk to sexually
reoffend in the future[,]" which further supported his
conclusion that A.R. is at a higher risk of reoffending because
he is unable to control his sexual impulses.
Harris also testified that A.R.'s progression of sexual
acts and even his minor offenses "illustrate his cognitive
distortions[.]" He stated that in 2015, A.R. told a physician
that he sexually touched a woman because "he thought the woman
was purposely making her breasts go [up] and down while walking
in the park" in order to attract his attention. Harris
testified that this "illustrates several layers of his inability
to regulate himself, to overly interpret sexual issues," and
that "he thinks things are directed at him." In addition, Harris
explained that A.R. exhibits these same characteristics while
incarcerated. For example, when he is challenged, "he gets very
upset and becomes quite aggressive," and has reported that "he
5 A-0895-17T5
feels that officers are targeting him and making sexual comments
to him."
Harris stated further that another factor that supported
his assessment of A.R. is that "he has conflict within his peer
relationships[.]" Specifically, he stated that A.R. admitted to
another physician that he smacked his girlfriend because "he
felt she was harassing him." Harris also determined that even
though A.R. had "consensual sexual relations" with his
girlfriend and a wife in a previous marriage, he still needed to
"sexually gratify himself . . . by engaging in . . . other
illegal paraphilic acts."
With respect to his substance abuse history, Harris
testified that A.R. "reported drug use as a way to avoid prison
sentencing[,]" and was admitted to a drug program, but "left
that program without consent[.]" The doctor commented that with
A.R., "it's hard to know what's accurate and what is not
accurate," and he could not determine whether A.R. had a drug
problem or was being manipulative when seeking drug treatment.
Similarly, Harris found that at times it appeared as though A.R.
"malinger[ed] and feign[ed] psychiatric symptoms to once again
attempt to decrease his responsibility [for] his behavior."
Harris reviewed A.R.'s treatment history and found that
A.R. had not improved. He stated that prior to going to STU,
6 A-0895-17T5
A.R. engaged in "sex offender treatment," where he had poor
attendance and did not complete the program. Since his time at
STU, Harris testified that A.R. "is difficult to engage[,]" and
"is essentially just learning how to use treatment at this
point[.]" Based upon his review, the doctor concluded that A.R.
"has demonstrated very poor volitional control," and "cognitive
distortion," which affects him emotionally.
Harris diagnosed A.R. with other specified paraphilic
disorder, other personality disorder with antisocial traits, and
borderline intellectual functioning. He explained that A.R.
does not meet the "full criteria for antisocial personality
disorder," but he has many traits including, "impulsivity,
irritability, . . . aggressiveness, reckless disregard for the
safety of others, [and] failure to conform to social norms."
The doctor also diagnosed A.R. with cocaine and alcohol use
disorders, although he reminded the court that A.R.'s reporting
of his drug use history was unreliable. If accurate, Harris
concluded that A.R.'s drug use "lowers his inhibitions," making
it more difficult to control his sexual drive and increasing the
chances that he will sexually act out.
7 A-0895-17T5
Harris also reported that A.R. scored seven on the Static-
99R,2 indicating a "well above average" risk to sexually
reoffend. However, he pointed out that "[t]his is not a full
estimate for his risk to sexually offend" because it "does not
address dynamic or psychological factors[,]" such as A.R.'s
"multiple deviant arousals," failed supervision, poor cognitive
problem solving and poor self-regulation. According to Harris,
A.R. "remains a high risk to sexually reoffend and continues to
meet the criteria for civil commitment under" the statute.
Roquet's report that was prepared after the TPRC examined
A.R. on September 13, 2017, stated that A.R. was placed in Phase
Two3 when he was civilly committed to the STU. Based on A.R.'s
treatment plan review from May 2017, the committee observed that
the treatment team recommended that A.R. remain in the same
phase. The TPRC concluded that A.R.'s progress in treatment has
2
"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. 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 SVPA.'" Ibid. (quoting In re
Commitment of R.S., 173 N.J. 134, 137 (2002)).
3
At the hearing, Harris defined Phase Two of treatment at STU
as "the phase where men learn how to use treatment[,]" and "how
to engage with each other and . . . how the therapeutic process
works."
8 A-0895-17T5
not mitigated his risk for sexual recidivism, and that he is
"highly likely to reoffend if not confined to the STU."
Roquet explained that there are several indicators that
support the TPRC's finding, including A.R.'s Static-99 score,
his high range dynamic risk factors, antisocial personality,
psychopathic personality traits, and substance abuse. According
to the report, A.R. should continue in Phase Two as he is "not
yet being open in treatment" and is still in the early phase of
treatment.
In an oral opinion placed on the record after the
presentation of the evidence, Judge Falcetano found by clear and
convincing evidence that A.R. was a sexually violent predator in
need of continued civil commitment in a secure facility under
the SVPA. The judge found Harris "qualified to render the
opinions that he did, and [found] his testimony to be eminently
credible." He observed that the STU report that was referenced
in Harris's testimony, indicated that A.R. "is still adapting to
the [facility] and to treatment, that he presents with a number
of risk factors which need to be addressed over time[,]" and he
"scores well above average in the risk to reoffend category"
that requires him to continue in Phase Two of his current
treatment.
9 A-0895-17T5
The judge concluded by clear and convincing evidence that
A.R. "suffers from a mental abnormality or personality disorder
that . . . can only be mitigated by sex offender treatment,"
that the disorder "affects the person cognitively, emotionally
or volitionally, which pred[isposes] the person to sexual
violence[,]" and that A.R. is "presently highly likely to
sexually reoffend, and in need of confinement at the STU." On
the same day, Judge Falcetano entered a memorializing order
continuing A.R.'s commitment and this appeal followed.
On appeal,4 A.R. again does not challenge the finding that
he committed a sexually violent offense, and that he was
"properly diagnosed with a mental abnormality or personality
disorder" that predisposes him to commit acts of sexual
violence. Rather, he argues that Judge Falcetano erred in
concluding that the State met its burden of proof that he is
highly likely to reoffend because the judge "did not weigh the
evidence properly[,]" and if he had, he "would have come up with
a different conclusion[.]"
A.R. relies on In re Civil Commitment of V.A., 357 N.J.
Super. 55 (App. Div. 2003), arguing that the judge should have
4
By agreement of the parties and with the permission of the
court, the appeal was argued without briefs. We summarize the
points raised by appellant based upon the presentation at oral
argument.
10 A-0895-17T5
considered the goal of gradual de-escalation in restraints
permitting a conditional release because he "no longer meets the
criteria for civil commitment." He also asserts that the judge
"inappropriately gave weight to other sex offenses" that only
involved "frotteuristic" behavior "to make [his] determination
that A.R. was highly likely to commit acts of sexual violence."
Further, A.R. contends that given his time at ADTC and STU, "he
has had many years of exposure to sex offender treatment," which
is sufficient "to make a finding that [he] is no longer highly
likely" to reoffend. We reject these arguments and affirm.
"The scope of appellate review of a commitment
determination is extremely narrow. The judges who hear SVPA
cases generally are 'specialists' and 'their expertise in the
subject' is entitled to 'special deference.'" R.F., 217 N.J. at
174 (citations omitted).
"The SVPA authorizes the involuntary commitment of an
individual believed to be a 'sexually violent predator' as
defined by the Act. The definition of 'sexually violent
predator' requires proof of past sexually violent behavior
through its precondition of a 'sexually violent offense.'" In
re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation
omitted). It also requires that the person "suffer[] from a
mental abnormality or personality disorder that makes the person
11 A-0895-17T5
likely to engage in acts of sexual violence if not confined in a
secure facility for control, care and treatment." Ibid.
(quoting 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." Ibid.
"Inherent in some diagnoses will be sexual compulsivity (i.e.,
paraphilia). But, the diagnosis of each sexually violent
predator susceptible to civil commitment need not include a
diagnosis of 'sexual compulsion.'" Id. at 129.
The same standard that supports the initial involuntary
commitment of a sex offender under the SVPA applies to the
annual review hearing. See In re Civil Commitment of E.D., 353
N.J. Super. 450, 452-53 (App. Div. 2002). As noted earlier, in
either case, "'the State must prove by clear and convincing
evidence that the individual has serious difficulty controlling
his or her harmful sexual behavior such that it is highly likely
that the person will not control his or her sexually violent
behavior and will reoffend.'" W.Z., 173 N.J. at 133-34.
As the fact finder, while "[a] trial judge is 'not required
to accept all or any part of [an] expert opinion[,]'" he or she
may "place[] decisive weight on [the] expert." R.F., 217 N.J.
at 156, 174 (second alteration in original) (citation omitted).
Furthermore, "an appellate court should not modify a trial
12 A-0895-17T5
court's determination either to commit or release an individual
unless 'the record reveals a clear mistake.'" Id. at 175
(quoting In re D.C., 146 N.J. 31, 58 (1996)).
We find no clear mistake on this record. We are satisfied
that the record amply supports Judge Falcetano's decision,
finding that A.R. suffers from paraphilia, among other mental
abnormalities or personality disorders, a necessary predicate
for continued commitment under the SVPA. See, e.g., In re Civil
Commitment of D.Y., 218 N.J. 359, 381 (2014). Based on credible
expert testimony, the judge determined that A.R.'s disorders,
past behavior and treatment progress demonstrated that he was
highly likely to engage in acts of sexual violence unless
confined. The judge's determination, to which we owe the
"utmost deference" and may modify only where there is a clear
abuse of discretion, In re J.P., 339 N.J. Super. 443, 459 (App.
Div. 2001), was proper. Contrary to A.R.'s assertions, this was
not a case where the State was "unable to justify the continued
confinement of the committee based on the progress the
committee" has made so as to warrant "intermediate levels of
restraint." V.A., 357 N.J. Super. at 64 (quoting E.D., 353 N.J.
Super. at 456).
Affirmed.
13 A-0895-17T5