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NOT FOR PUBLICATION WITHOUT THE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-0759-17T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF E.D., SVP-075-00.
________________________________
Argued March 22, 2018 – Decided June 21, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
075-00.
Patrick Madden, Assistant Deputy Public
Defender, argued the cause for appellant E.D.
(Joseph E. Krakora, Public Defender,
attorney).
Victoria R. Ply, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Gurbir S. Grewal, Attorney General,
attorney).
PER CURIAM
E.D. appeals from the September 27, 2017 Law Division order
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 E.D.'s prior criminal history or the
events that followed his original admission to the STU in 2000.
They are recounted at length in our Supreme Court's decision, In
re Civil Commitment of E.D., 183 N.J. 536 (2005), as well as in
our prior opinions, In re Civil Commitment of E.D., 353 N.J. Super.
450 (App. Div. 2002), In re Civil Commitment of E.D., No. A-3984-
02 (App. Div. May 14, 2004), In re Civil Commitment of E.D., No.
A-0685-05 (App. Div. Jan. 14, 2008), and In re Civil Commitment
of E.D., No. A-5263-13 (App. Div. Oct. 28, 2016), certif. denied,
230 N.J. 487 (2017). Suffice it to say that E.D., born September
1957, has an extensive juvenile and adult criminal history, which
began at age fourteen.
Initially, E.D.'s offenses were primarily non-sexual theft,
assault, and drug-related charges. However, in the 1970's, his
offenses became more violent and developed sexual overtones.
Specifically, his 1977 conviction arose out of his assault of a
woman whom police found bleeding and with the crotch area of her
pants torn. His 1978 conviction for rape involved him breaking
into the victim's apartment. His 1994 conviction for criminal
sexual contact resulted from him kicking in the victim's front
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door. His 1997 conviction for assault arose out of him ordering
the victim to remove her clothes at knifepoint.
He was committed to the STU under the SVPA in 2001, following
his incarceration for the 1997 conviction. In 2003, he was
conditionally discharged but later returned to the STU due to a
violation of the discharge conditions. In 2010, he was
conditionally discharged again, but he absconded in 2012, and
returned to the STU on the violation in 2014. At the September
27, 2017 civil commitment review hearing before Judge James F.
Mulvihill that is the subject of this appeal, the State presented
expert testimony from Dr. Marta Pek Scott and Dr. Paul Dudek to
support E.D.'s continued commitment. In opposition, E.D.
testified on his own behalf and explained the circumstances that
led to his conditional discharge violations.
Dr. Scott, a psychiatrist, conducted a forensic psychiatric
evaluation of E.D and submitted a report that was admitted into
evidence at the hearing. After interviewing E.D. in August 2017
and reviewing his previous psychiatric evaluations, STU treatment
records, prison and police records, she concluded that E.D. met
the criteria of a sexually violent predator. Dr. Scott diagnosed
E.D. with antisocial personality disorder and polysubstance use
disorder. According to Dr. Scott, these disorders do not
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spontaneously remit, and their emotional, cognitive, and
volitional effects make E.D. predisposed to commit acts of sexual
violence. Dr. Scott also diagnosed E.D. with "borderline
intellectual functioning" but acknowledged that it did not appear
"he would suffer adaptive limitations."
Because of insufficient evidence, Dr. Scott did not diagnose
E.D. with a paraphilic disorder. She believed E.D. committed his
offenses "in the context of his personality
disorder . . . combined with . . . substance use" because E.D.
told her "he was intoxicated during all the offenses." Although
E.D. denied "having a deviant arousal" or "deviant fantasies," Dr.
Scott opined that, given his diagnosis, he did not exhibit enough
understanding of important sex offender concepts to mitigate his
risk for sexual re-offense.
According to Dr. Scott, while E.D.'s most recent progress
notes indicated "that he [had] significantly improved upon the
quality of his treatment participation and motivation, and
processed several issues . . . related to his dynamic factors[,]
[o]n the other hand, . . . he still [had] negative core beliefs
about women" and "continue[d] to believe that the conditions of
his discharge" were unfair. E.D. also consistently denied that
any of his sexual offenses were non-consensual.
4 A-0759-17T5
Dr. Scott testified E.D. "still [had] work to
do . . . developing his sexual assault cycle and . . . appropriate
relapse prevention plan." According to Dr. Scott, E.D. had "no
relapse prevention plan . . . despite the number of years he [had]
spent at the STU," and his argument that he did not commit "any
sex crime[s] during the time he . . . spent in the
community . . . [did] not constitute a relapse prevention plan by
any means."
Dr. Scott stated that at age sixty, E.D.'s Static-99R1 score
was five, which indicated an above average risk for re-offending.
In addition to the actuarial measure, Dr. Scott considered various
dynamic risk factors "that are not represented in the Static-99R,"
such as "early onset of sexual offending, substance abuse history,
antisocial personality structure, re-offending after previous
consequences, poor cognitive problem solving skills, cognitive
1
"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) (citing Andrew
Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). 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)).
5 A-0759-17T5
distortions, and . . . inability to comply with treatment and
supervision."
Dr. Scott also considered various mitigating factors such as
"advanced age, serious illness, and skills obtained in treatment."
However, she determined that none of these factors "provide[d]
sufficient risk mitigation" in E.D.'s case and opined that he was
currently "highly likely" to re-offend if released into the
community. Furthermore, E.D.'s inability to comply with the
conditions of his discharge in the past "indicate[d] that he [was]
not ready for community life yet," and was unlikely to abide by
conditions if discharged a third time within the next twelve
months.
Dr. Paul Dudek, a psychologist and member of the STU's
Treatment Progress Review Committee (TPRC), conducted an annual
review of E.D.'s progress by interviewing E.D. and analyzing the
prior TPRC reports and prior treatment team reports. He also
submitted a report that was admitted into evidence. Dr. Dudek
concluded that E.D. "would be highly likely to re-offend sexually,"
and had not experienced sufficient treatment effect to mitigate
that risk.
Dr. Dudek generally agreed with Dr. Scott's diagnosis but
added a diagnosis of "other specified paraphilic disorder,
6 A-0759-17T5
specifically non-consent, with antisocial personality disorder,"
polysubstance use disorder, and "borderline intellectual
functioning." Dr. Dudek attributed his diagnosis to "a strong
component of that drive to act out on the urges and the fantasies
related to non-consent," despite E.D.'s denial of "any sort of
urges or a pattern of arousal to the kind of offenses . . . he's
been involved in." Dr. Dudek explained that deviant arousal is a
significant risk factor that treatment can control but cannot
eliminate.
According to Dr. Dudek, after E.D. returned to the STU, he
began his treatment trajectory poorly by focusing on the conditions
of his discharge, which he believed were unfair. However, "during
the course of his treatment," he became "more oriented towards
recognizing his . . . poor problem solving, and the impulsivity
and decision making" that "led to his return to the STU."
Nonetheless, while E.D. was "becoming more engaged in the
treatment, his understanding of the actual sex offense related
factors" as well as "his own relapse prevention planning" were
"relatively poor" and "hampered by his denial of the offenses."
Given E.D.'s current treatment trajectory, Dr. Dudek stated it was
"unlikely that he would comply with any sort of conditions of
discharge."
7 A-0759-17T5
Dr. Dudek also gave E.D. a score of five on the Static-99R,
but found several dynamic risk factors, including relationship
instability, "poor cognitive problem solving," a "history of
impulsivity," "hostility toward women," "general social
rejection," noncompliance with supervision, and "deviant arousal
patterns." Although treatment exposure and advanced age could be
mitigating factors, Dr. Dudek concluded that, in E.D.'s case,
treatment had "not been sufficient . . . to reduce [his] risk,"
and there was "no indication" that his advanced age has had a
beneficial effect.
In an oral opinion rendered immediately after the hearing,
Judge Mulvihill found "by clear and convincing evidence" that E.D.
had "been convicted of a sexually violent offense"; "suffer[ed]
from antisocial personality disorder and paraphilia otherwise
specified which affect him emotionally, cognitively, [and]
volitionally"; had "serious difficulty controlling his sexually
violent behavior"; and was "highly likely to sexually re-offend"
if released. The judge found both experts credible and made
findings consistent with their testimony and reports. He agreed
with their diagnosis of antisocial personality disorder and
polysubstance dependence but disagreed with Dr. Scott's opinion
8 A-0759-17T5
that there was "no paraphilia" and no "deviant arousal." In that
regard, he credited Dr. Dudek's contrary opinion.
Judge Mulvihill also recounted E.D.'s "extensive" juvenile
and criminal history but acknowledged that, while E.D.'s sexual
offenses were "very serious," they were twenty-five years old.
Further, the judge referenced E.D.'s extensive "substance abuse
history," which began with alcohol at age fourteen and cocaine and
marijuana at age seventeen. Additionally, Judge Mulvihill
acknowledged that E.D. was making "some progress in treatment
recently" but noted that he continued to deny the sexual offenses
and that, given his two prior failed attempts, he could not
demonstrate that he was "highly likely to adhere" to the conditions
of a conditional discharge if released now. Judge Mulvihill
entered the order continuing E.D.'s commitment, and this appeal
followed.
On appeal, E.D. concedes he committed a "sexually violent
offense" and is therefore subject to the SVPA, but argues Judge
Mulvihill gave insufficient weight to the factors indicating he
did not pose a risk and was not likely to reoffend sexually. In
particular, E.D. pointed out that he did not sexually reoffend
when he absconded from conditional discharge between 2010 and
2014. In addition, he notes he has made progress in treatment and
9 A-0759-17T5
has a reduced Static 99-R score because of his advanced age.2 We
reject these arguments and affirm.
"The scope of appellate review of a commitment determination
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)).
"The SVPA authorizes the involuntary commitment of an
individual believed to be a 'sexually violent predator' as defined
by the Act." In re Commitment of W.Z., 173 N.J. 109, 127 (2002)
(citing N.J.S.A. 30:4-27.28). "The definition of 'sexually
violent predator' requires proof of past sexually violent behavior
through its precondition of a 'sexually violent offense,'" which,
in E.D.'s case, is undisputed. Ibid. 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).
2
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-0759-17T5
"[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 "to support involuntary commitment of a sex
offender under the Act . . . applies for [an individual] who has
been given a conditional discharge and is alleged to have violated
it." E.D., 183 N.J. at 551. 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." Ibid.
(quoting W.Z., 173 N.J. at 133-34).
As the fact finder, a trial judge is "not required to accept
all or any part of [an] expert opinion[]." R.F., 217 N.J. at 174
(alterations in original) (quoting D.C., 146 N.J. at 61).
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).
11 A-0759-17T5
We find no clear mistake on this record. We are satisfied
that the record amply supports Judge Mulvihill's finding that E.D.
suffers from antisocial personality disorder and other specified
paraphilic 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 E.D.'s disorders,
polysubstance dependence, 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 Commitment of J.P., 339 N.J.
Super. 443, 459 (2001), was proper.
Affirmed.
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