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NOT FOR PUBLICATION WITHOUT THE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-2371-15T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF M.E.H.,
SVP-354-04.
_______________________
Submitted June 5, 2018 – Decided June 28, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
SVP-354-04.
Joseph E. Krakora, Public Defender, attorney
for appellant M.E.H. (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; Nicholas Logothetis, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant, who is now fifty-seven years old, appeals from a
January 28, 2016 judgment continuing his involuntary civil
commitment to the Special Treatment Unit (STU) as prescribed by
the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24
to -27.38. We affirm.
I.
Appellant has a lengthy history of sexual offenses against
women and young girls. His offense history has been reviewed at
length in this court's prior opinions affirming his initial
commitment and upholding his continued commitment.1 Thus, we
provide only a brief summary here.
Between 1982 and 1990, appellant was arrested and charged
with sexual-assault offenses involving four different victims,
including two minors. In one situation, he pled guilty to a lesser
charge of simple assault. During the investigation of the sexual
assault of a twelve-year-old victim, appellant admitted having sex
with the child, although claimed that he did not know that the
child was a minor. In another situation, appellant pled guilty
to fourth-degree criminal sexual contact and admitted that he
forcibly touched the victim's breasts, vagina, and buttocks.
Appellant's civil commitment was predicated on a sexual
assault that occurred in May 1996, after the victim experienced
car trouble on the Garden State Parkway. Appellant drove by the
victim's disabled vehicle and offered her a ride. During the
drive, he pulled the vehicle over and proceeded to forcibly
1
See In re Civil Commitment of M.E.H., No. A-5871-10 (App. Div.
Feb. 11, 2014) (upholding appellant's continued commitment); In
re Civil Commitment of M.E.H., No. A-5923-05 (App. Div. Feb. 27,
2008) (upholding appellant's initial commitment).
2 A-2371-15T5
sodomize the victim twice. Appellant pled guilty to second-degree
sexual assault and was sentenced to ten years in prison with four
years of parole ineligibility.
He was civilly committed in 2004. The review hearing
underlying this appeal was conducted in January 2015 and January
2016. The State presented two expert witnesses: (1) John Zincone,
M.D., a psychiatrist; and (2) Tarmeen Sahni, Ph.D., a psychologist.
Appellant testified on his own behalf and also presented expert
testimony from Christopher Lorah, Ph.D., a psychologist.
Dr. Zincone found that appellant does not have sexual impulse
control. He opined that the level of appellant's treatment effect
was poor given the number of years he has been in treatment, and
that any progress made by appellant was in its beginning stages.
In that regard, he found that appellant does not understand the
nature of his arousal and lacks the ability to recognize the rights
of others. He determined that appellant exhibits an arousal to
violence and uses sex as a method to deal with stress and cope.
Dr. Zincone diagnosed appellant with other specific paraphilic
disorder, non-consenting type in a controlled environment, as well
as other specified personality disorder with antisocial and
narcissistic traits. Ultimately, Dr. Zincone opined that
appellant has a mental abnormality and volitional, emotional, and
cognitive impairments; would have serious difficulty in
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controlling his sexual offending behavior; and was highly likely
to reoffend in the foreseeable future unless confined.
Dr. Sahni's findings echoed those of Dr. Zincone. In that
regard, she found that appellant had not yet addressed the role
that violence plays in his arousal, and that he could not identify
or develop other mechanisms that would substitute his need for sex
as a coping mechanism. Dr. Sahni diagnosed appellant with other
specified paraphilic disorder, non-consenting type. Dr. Sahni
further identified appellant as having other specified personality
disorder, antisocial narcissistic features, and alcohol, cannabis,
and steroid use disorders. Dr. Sahni acknowledged that appellant
has become more engaged in and receptive to treatment, but
cautioned that he was in the early stages of progress. She opined
that appellant remains highly likely to sexually reoffend if not
confined to a secure facility.
Dr. Lorah conceded that there was a need for appellant's
continued sexual specific treatment. Dr. Lorah opined, however,
that appellant had made progress in his treatment that put him
below the "highly likely" threshold relating to his risk to
reoffend. Ultimately, Dr. Lorah recommended a conditional
discharge with stipulations.
On January 28, 2016, the trial judge rendered an oral decision
and found appellant to be a sexually violent predator in need of
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continued civil commitment. The judge found that the 1996 sexual
assault was a sexually violent offense under the SVPA. Relying
on the State's experts, he found that appellant suffers from a
mental abnormality and a personality disorder that predispose him
to engage in acts of sexual violence. The judge also found that
if appellant was released, he would have serious difficulty
controlling his sexually violent behavior and, within the
reasonably foreseeable future, would be highly likely to engage
in acts of sexual violence. Finally, the judge concluded that
while appellant has been confined for some time, he has not reduced
his risk to reoffend through substantial treatment. Thus, the
judge entered an order that same day continuing appellant's civil
commitment to the STU.
II.
The scope of an appellate court's review of an SVPA commitment
determination 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)). "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)). The trial
court's findings should not be disturbed if they are supported by
"sufficient credible evidence . . . in the record." Id. at 175
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(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly,
an appellate court should not modify the trial judge's
determination to commit an individual, unless the "the record
reveals a clear mistake." Ibid. (quoting D.C., 146 N.J. at 58).
Under the SVPA, the State may involuntarily commit "'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.'" Id. at 173 (quoting N.J.S.A. 30:4-27.26). The State
must establish three facts to commit or continue the involuntary
commitment under the SVPA:
(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."
[Ibid. (citations omitted) (quoting In re
Commitment of W.Z., 173 N.J. 109, 130
(2002)).]
"If 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
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the custody, care and treatment of sexually violent predators."
N.J.S.A. 30:4-27.32(a).
Here, appellant pled guilty to second-degree sexual assault.
Therefore, he has been convicted of a sexually violent offense.
See N.J.S.A. 30:4-27.26(a) (including sexual assault under the
definition of "[s]exually violent offense"). Consequently,
appellant does not challenge the first element. Rather, he focuses
on the second and third elements. In that regard, appellant frames
his arguments as follows:
THE STATE FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT RESPONDENT M.E.H. IS
A SEXUALLY VIOLENT PREDATOR AND THAT THE RISK
OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY HIGH
LEVEL TO JUSTIFY CONTINUED COMMITMENT UNDER
THE CURRENT TREATMENT PLAN.
Under the SVPA, "[m]ental abnormality" is defined as a
"condition that affects a person's emotional, cognitive or
volitional capacity in a manner that predisposes that person to
commit acts of sexual violence." N.J.S.A. 30:4-27.26. While the
SVPA does not define "personality disorder," our Supreme Court has
held that the relevant inquiry is whether "the mental condition
. . . affect[s] an individual's ability to control his or her
sexually harmful conduct." W.Z., 173 N.J. at 127.
Here, appellant argues that the State failed to prove that
he suffers from a mental abnormality or personality disorder that
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predisposes him to acts of sexual violence. In particular,
appellant contends that there was not clear and convincing evidence
that he "qualifies for a diagnosis of" pedophilia or antisocial
personality disorder. We reject this argument for two reasons.
First, a diagnosis of pedophilia, specifically, is not
necessary to prove that appellant suffers from a mental abnormality
or personality disorder under the SVPA. See N.J.S.A. 30:4-27.26.
Second, both of the State's experts diagnosed appellant with
paraphilia and other specified personality disorder with
antisocial and narcissistic traits. The trial judge found that
testimony to be credible. We discern no error in the trial court's
determination that the State had proven by clear and convincing
evidence that appellant suffered from a mental abnormality or
personality disorder which predisposed him to engage in sexual
violence.
Appellant also challenges the trial judge's finding that, if
released, he is "highly likely" to reoffend. In that regard, he
contends that determination directly contradicted Dr. Lorah's
expert opinion that appellant has made positive progress in his
treatment. Initially, we note that "[t]the final determination
of dangerousness lies with the courts, not the expertise of
psychiatrists and psychologists." Trantino v. N.J. State Parole
Bd., 166 N.J. 113, 174 (2001) (quoting D.C., 146 N.J. at 59). Dr.
8 A-2371-15T5
Lorah's expert opinion, therefore, is not dispositive of whether
it is "highly likely that the [civilly committed] individual will
not control his or her sexually violent behavior and will
reoffend." W.Z., 173 N.J. at 130. Moreover, the trial judge
found that Dr. Lorah's opinion regarding appellant's treatment
progress lacked support in the record.
Both of the State's experts testified that appellant's
progress in treatment is in its beginning stages. In that regard,
they observed that appellant has not yet dealt with his arousal
to violence. They also opined that he still uses sex as a coping
mechanism. Relying on that testimony, the judge found that
appellant would have serious difficulty controlling his sexually
violent behavior and, within the reasonably foreseeable future,
would be highly likely to engage in acts of sexual violence. We
discern no basis to disturb that finding.
Accordingly, in applying our standard of review and the
applicable law, we find that the record supports the trial judge's
factual findings and determination that each of the elements under
the SVPA were proven by clear and convincing evidence.
Affirmed.
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