IN THE MATTER OF THE CIVIL COMMITMENT OF A.E.F., SVP-306-03 (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NOT FOR PUBLICATION WITHOUT THE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-3707-16T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
A.E.F., SVP-306-03.
_________________________

Argued March 22, 2018 – Decided July 5, 2018

Before Judges Haas and Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
306-03.

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

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

PER CURIAM

A.E.F. appeals from the March 1, 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.

We need not recount A.E.F.'s prior criminal history or the

circumstances relating to his criminal convictions as they are not

in dispute and are set forth at length in our prior opinions, In

re Civil Commitment of A.E.F., 377 N.J. Super. 473, 477-79 (App.

Div. 2005), and In re Civil Commitment of A.E.F., No. A-5327-06

(App. Div. Jan. 2, 2008). Suffice it to say that A.E.F. has an

extensive criminal history consisting of non-sexual and sexual

violent offenses. In 2003, he was committed to the STU under the

SVPA after serving his sentence, and his commitment has been

continued following periodic review hearings.

The most recent review, which is the subject of this appeal,

was conducted by Judge James F. Mulvihill on March 1, 2017. At

the hearing, the State relied on the unrefuted expert testimony

of psychiatrist Dr. Roger Harris, who opined that A.E.F.'s risk

to sexually reoffend remained high. Harris' testimony was

consistent with a report he prepared after reviewing previous

psychiatric evaluations, STU treatment records, and related

documents. Harris did not rely on his own examination of A.E.F.

because he refused to meet with the doctor. Further, a Treatment

Progress Review Committee (TPRC) report, authored by Dr. Paul

Dudek on January 20, 2017, was admitted into evidence, without

2 A-3707-16T5
objection.1 Various treatment notes and other records were also

admitted into evidence.

Harris concluded that A.E.F., born in 1951, met the criteria

of a sexually violent predator and was "highly likely to sexually

reoffend if placed in a less restrictive setting" because he has

not mitigated his risk. Based on A.E.F.'s "pervasive pattern of

disregard and the violation of others[,]" his "[f]ailure to conform

to social norms" resulting in repeated arrests, his

"[d]eceitfulness," his "impulsiv[eness,]" "irritability[,]

aggressiveness[,]" "reckless disregard for the safety of

. . . others[,]" "lack of remorse[,]" and "indifferen[ce] to"

hurting others, Harris diagnosed A.E.F. with antisocial

personality disorder. He testified that A.E.F.'s score of five

on the Static-99R,2 indicating an above average risk to sexually

reoffend, "was not a full estimate for his risk to sexually

1
The parties stipulated to the report being admitted into
evidence without the testimony of Dudek.
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." In re Civil
Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citation
omitted). 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 A-3707-16T5
reoffend in that it does not address dynamic and psychological

factors which have been shown to place individuals at risk, beyond

what is measured by actuarial instruments."

Harris also diagnosed A.E.F. with other specified paraphilic

disorder, coercion, because of his repeated behavior of "forc[ing]

women to submit to his sexual demands against their will. He has

engaged in this behavior in spite of arrests, convictions and

ultimately loss of his liberty. He has repeatedly broken into

homes and sexually assaulted women in these homes."

Further, Harris found evidence of A.E.F. having alcohol use

disorder in a controlled environment, cannabis use disorder in a

controlled environment, and opioid use disorder in a controlled

environment. He testified that due to A.E.F.'s substance abuse

problems, "whatever ability he has to resist his impulsivity around

sexual aggression or just aggression, will further be eroded

leaving him very vulnerable to act on either aggression or sexual

aggression."

Harris described A.E.F. as being "very resistant to

significant aspects of treatment." According to the doctor, A.E.F.

has a history of "chronic back" problems that "necessitated

hospitalization and surgery" and a result he "has refused to

participate in [medical] treatment unless he is given opiates."

He opined that although A.E.F. "has medical problems . . . [he]

4 A-3707-16T5
do[es] not think [these] medical problems are an obstacle to

treatment or mitigate [A.E.F.'s] risk to sexually reoffend." He

testified "the way [A.E.F.] applies himself and the way he uses

himself is the problem, not his medical conditions, which have

interrupted his treatment and are a blip in his treatment[.]"

In addition, the TPRC that evaluated A.E.F. concluded in its

report that he "is an individual who has yet to significantly

lower his risk of recidivism to warrant recommendation of discharge

and continues to be highly likely to engage in acts of sexual

violence." Recounting his treatment progress, the TPRC observed

that A.E.F. "had repeatedly touted his recovery from substance

abuse but when confronted about his drug seeking behaviors for

pain medications in 2015 he began a protracted and gradually

escalating period of withdrawal from treatment that continues

unabated today." He is "currently on Treatment Refusal Status"

and was previously "on Treatment Probation Status after a

clinically significant period of time in 2015 where he did not

make any presentations . . ., was inconsistent in his attendance

. . ., and was unwilling to address verbal warnings . . . that he

could be placed on treatment refusal."

The diagnoses presented in the report were that of "Other

Specified Paraphilic Disorder (non-consent)[;] Cannabis Use

Disorder, In a Controlled Environment[;] Opioid Use Disorder, In

5 A-3707-16T5
a Controlled Environment[;] Stimulant Use Disorder, In a

Controlled Environment[;] Other Hallucinogen Use Disorder In a

Controlled Environment[; and] Other Specified Personality

Disorder, with Antisocial features, severe[.]" A.E.F.'s "Other

Specified Paraphilic Disorder (non-consent) indicates that [he]

experiences recurrent, intense sexual urges, fantasies, or

behaviors that involve unusual objects, activities, or situations

that cause clinically significant distress or impairment in

social, occupational, or other important areas of functioning."

"The specifier of non-consent is satisfied by [A.E.F.'s] history

of self-reported . . . fantasies about raping others. Moreover,

he has acted out on these fantasies by forcing sexual activity

upon others in many of his crimes." His "substance abuse related

disorders describe [A.E.F.'s] historical pattern of using

marijuana, barbiturates, hallucinogens, stimulants, and opioids."

Last, "[t]he diagnosis of Other Specified Personality Disorder

refers to [A.E.F.'s] pattern of impulsivity, recklessness, and

disregard for the rights and well-being of others."

The report noted that A.E.F. "was administered the

Psychopathy Checklist-Revised, Second Edition (PCR-R)[, which]

provides a dimensional score that represents the extent to which

. . . a given individual is judged to match a 'prototypical

psychopath' [and A.E.F.] received a score of [thirty-one.]" "An

6 A-3707-16T5
individual who receives a score of [thirty] or above meets the

diagnostic research criteria for psychopathy." According to the

report, A.E.F. also received a score of five on the Static-99R,

two points less than earlier tests, which was attributable to him

turning sixty years old.

A.E.F. testified regarding the interruption in his treatment,

explaining that his medical conditions have caused him to miss

"[s]everal" treatment groups. He detailed the extent of his health

problems, which included "extreme back pain" and stomach problems,

both of which required surgery. Despite these conditions causing

him to miss his treatment groups, A.E.F. testified that he "did

the best [he] could."

In an oral opinion rendered on March 1, 2017, Judge Mulvihill

articulated the applicable legal principles, recounted the

testimony of Harris and A.E.F., and detailed A.E.F.'s treatment

record at the STU. Although he found both witnesses credible, he

determined "[t]hat there's clear and convincing evidence that

[A.E.F.] has been convicted of very serious sexual violent

offenses," which bring him within the purview the SVPA; that he

"continues to suffer from a mental abnormality and personality

disorder that does not spontaneously remit and affects him

cognitively," and that if released, "he’s highly likely to sexually

reoffend." On the same date, Judge Mulvihill entered a

7 A-3707-16T5
memorializing order continuing A.E.F.'s commitment, and this

appeal followed.

On appeal,3 A.E.F. argues that Judge Mulvihill erred in

concluding that the State met its burden of proof because the

judge "did not properly weigh the evidence[.]" Specifically, he

asserts that the judge "did not properly consider both A.E.F.’s

physical conditions as well as his advanced age in

. . . determining whether or not he was highly likely to commit

acts of sexual violence." He also argued that the judge "should

not have found [Harris] credible because he did not give proper

consideration" to these issues. 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

3
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.

8 A-3707-16T5
of a 'sexually violent offense' (which, in [A.E.F]'s case, is not

disputed)." 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 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 Act applies to the annual

review hearing. See In re Civil Commitment of E.D., 353 N.J.

Super. 450, 452-53 (App. Div. 2002). 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.

9 A-3707-16T5
 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 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).

We find no clear mistake on this record. We are satisfied

that the record amply supports Judge Mulvihill's decision.

Moreover, A.E.F. never disputed that he was convicted of committing

the requisite criminal offenses or that he suffers from antisocial

personality disorder and substance abuse disorders, a necessary

predicate for continued commitment under the SVPA. See In re

Civil Commitment of D.Y., 218 N.J. 359, 380 (2014). His only

contentions were that his medical issues interfered with his

ability to continue treatment and that his age and physical

conditions made it less likely that he would reoffend. Based on

credible expert testimony, the judge determined that, without

treatment, even if attributable to his medical issues, A.E.F.'s

disorders, past behavior and lack of treatment progress

demonstrated that he was highly likely to sexually reoffend. The

judge's determination, to which we owe the "utmost deference" and

10 A-3707-16T5
may modify only where there is a clear abuse of discretion, In re

J.P., 339 N.J. Super. 443, 459 (2001), was proper.

Affirmed.

11 A-3707-16T5