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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4011-14T2
IN THE MATTER OF THE
CIVIL COMMITMENT OF P.P.,
SVP-711-15.
_________________________
Submitted April 5, 2017 – Decided July 18, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
SVP-711-15.
Joseph E. Krakora, Public Defender, attorney
for appellant P.P. (Nancy C. Ferro, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent State of New Jersey
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Amy Beth Cohn, Deputy Attorney
General, on the brief).
Appellant P.P. filed a pro se supplemental
brief.
PER CURIAM
Appellant P.P appeals from the April 27, 2015 Law Division
judgment involuntarily committing him to the Special Treatment
Unit (STU) as a sexually violent predator pursuant to the Sexually
Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We
affirm.
An involuntary civil commitment can follow service of a
sentence, or other criminal disposition, when the offender
"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."
N.J.S.A. 30:4-27.26; see also N.J.S.A. 30:4-27.25. To civilly
commit an individual, the State must prove by clear and convincing
evidence:
(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[.]
[In re Civil Commitment of R.F., 217 N.J. 152,
173 (2014) (citations omitted) (quoting In re
Commitment of W.Z., 173 N.J. 109, 130
(2002)).]
"Although the first two elements derive directly from the statute,
to comport with substantive due process concerns, [the] Court
interpreted the third statutory element as requiring the State to
show that a person is 'highly likely,' not just 'likely,' to
sexually reoffend." Ibid.
2 A-4011-14T2
In order to be considered a sexually violent predator, an
individual must have committed a sexually violent offense.
N.J.S.A. 30:4-27.26. Sexual assault is considered a sexually
violent offense. Ibid. In this case, in 1995, P.P., then age
twenty-one, pled guilty to endangering the welfare of a twelve-
year-old girl, E.G., with whom he had oral and vaginal intercourse
on three occasions. He was sentenced to 364 days in the county
jail, three years' probation, community supervision for life
(CSL), and ordered to undergo a psychological evaluation and follow
all recommendations.
In January 2003, P.P. pled guilty to two counts of second-
degree sexual assault, N.J.S.A. 2C:14-2(c), of two fourteen-year-
old girls, A.S. and J.F., with whom he had sexual intercourse.
P.P. impregnated A.S. who bore a child. P.P. was sentenced to two
concurrent eight-year terms of imprisonment and CSL, and ordered
to comply with Megan's Law registration requirements.
In 2007, while investigating a complaint that P.P. had
sexually assaulted a six-year-old girl, the investigator
discovered that P.P. was not living at the address he had
registered under Megan's Law. In January 2011, P.P. pled guilty
to the CSL violation, and was sentenced to eighteen months in
State prison.
3 A-4011-14T2
In May 2008, P.P. was arrested and charged with violating the
condition on special sentence that prohibited him from using the
internet to access social network websites. P.P. was found guilty
of the charge and sentenced to eighteen months in State prison.
In May 2010, an investigator from the Gloucester County
Prosecutor's Office was monitoring the internet and found
suspicious file extensions on P.P.'s computer. An investigation
revealed files showing an adult male engaging in various sex acts
with a prepubescent female and a tutorial demonstrating how to use
various objects as sex toys with a preteen daughter and avoid
detection.
In August 2010, P.P. pled guilty to second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a),1 and fourth-
1
N.J.S.A. 2C:24-4(b)(5)(a) provides as follows:
A person commits a crime of the second degree
if, by any means, including but not limited
to the Internet, he:
(i) knowingly distributes an item depicting
the sexual exploitation or abuse of a child;
(ii) knowingly possesses an item depicting the
sexual exploitation or abuse of a child with
the intent to distribute that item; or
(iii) knowingly stores or maintains an item
depicting the sexual exploitation or abuse of
a child using a file-sharing program which is
designated as available for searching by or
copying to one or more other computers.
4 A-4011-14T2
degree violation of special sentence for failure to register and
notify the police of a change of address, N.J.S.A. 2C:43-6.4(d).
P.P. was sentenced to six years in State prison on the endangering
charge, and a concurrent eighteen months on the CSL violation.
P.P. also has an adult nonsexual criminal history that includes
convictions for simple assault, terroristic threats, and domestic
violence resulting in a final restraining order issued against
him.
On January 9, 2015, the State filed a petition seeking P.P.'s
involuntary commitment under the SVPA. Judge James F. Mulvihill
conducted a commitment hearing, at which a psychiatric expert,
Roxanne Lewin, M.D., and a psychological expert, Nicole Paolillo,
Psy.D., testified for the State. Defendant testified on his own
behalf.
Dr. Lewin attempted to interview P.P., but he declined to
attend. Based on her review of P.P.'s records, the doctor found
it significant that P.P. continued to sexually assault young girls
in 2002 even after a prior conviction for the same type of sexual
offense in 1995. She also found it a high risk behavior that P.P.
viewed child pornography while on CSL for these prior sex
5 A-4011-14T2
convictions. She scored P.P. with a "6" on the STATIC-99R2
actuarial instrument, indicating he fell within the high risk
range to sexually recidivate in the community.
Dr. Lewin diagnosed P.P. with Paraphilic Disorder, Not
Otherwise Specified, because of his arousal to prepubescent
females which resulted in multiple convictions for sexual assault.
She noted that even though P.P. was subject to CSL, he participated
in internet file sharing of child pornographic material, further
reinforcing his sexual deviance. She considered this offense when
determining P.P.'s ability to be monitored in the community. She
found it unlikely that P.P. thought all of his young victims were
of adult age.
Dr. Lewin also diagnosed P.P. with a Personality Disorder,
NOS with Antisocial Traits, because of his demonstrations of
unlawful behavior and disregard for the rights of others beginning
at age nineteen. She found that P.P. was unable to control his
2
The STATIC-99R is an actuarial test used to estimate the
probability of sexually violent recidivism in adult males
previously convicted of sexually violent offenses. See 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."
R.F., supra, 217 N.J. at 164 n.9 (quoting In re Commitment of
R.S., 173 N.J. 134, 137 (2002)).
6 A-4011-14T2
impulses and that prior legal sanctions had no deterrent effect
on him. She also considered P.P.'s multiple arrests for nonsexual
criminal offenses.
Dr. Lewin testified that while P.P. had participated in some
outpatient sex offender treatment sessions, they had no helpful
or significant effect. She could not point to any factors, such
as treatment progress, age, or current medical problems that
mitigated P.P.'s current high risk.
Dr. Lewin concluded that P.P. suffers from a Paraphilia and
Personality Disorder that affect him emotionally, cognitively, or
volitionally so as to predispose him to commit acts of sexual
violence. She opined that P.P.'s disorders cause him to have
serious difficulty controlling his sexual offending behavior such
that he is highly likely to sexually reoffend if not confined to
the STU for treatment. She pointed to P.P.'s deviant sexual
arousal to young girls, his antisocial personality traits,
multiple victims, and prior failures under supervision as
aggravating factors leading her to conclude he is highly likely
to reoffend if not confined.
Dr. Paolillo twice attempted to interview P.P., but he
declined. Based on her review of P.P.'s records, she testified
that during an evaluation with Jeffrey B. Allen, Ph.D. at the
Adult Diagnostic Treatment Center, P.P. acknowledged that he knew
7 A-4011-14T2
E.G. was twelve years old when they had sexual intercourse. The
doctor found P.P.'s offending history significant because of the
consistency of the ages of his young victims and his commission
of the 2002 sexual offenses while on CSL. She testified: "It's
reflective of non-compliance with supervision, which is a robust
predictor of recidivism. . . . [P.P. is] a repeat offender of the
supervision that's been imposed upon him[,]" namely, failure to
register under Megan's Law, accrual of new charges, and possession
of photos of children engaged in sex acts.
Dr. Paolillo found it improbable that P.P. could not know
many of the files found on his computer contained child pornography
because of the file names "pedo, preteen, baby, underage, child
lover, and 12-, 11-, 10-, 9-, 8-, 7-, 6- year old." She was
concerned that someone with P.P.'s history of sexual offenses
against children was reinforcing his deviant sexual arousal
through child pornography. She stated: "It's a precipitator to
[sexual] offending. It's an exceptionally high risk behavior."
She explained that by viewing explicit sexual images of children,
P.P. was reinforcing his sexually deviant arousal that, in turn,
becomes part of his sexual assault cycle.
Dr. Paolillo testified that P.P. had not been exposed to sex
offender treatment beyond the few court-ordered sessions following
8 A-4011-14T2
his first sexual offense conviction. She found it significant
that P.P. sexually reoffended after exposure to treatment.
Dr. Paolillo diagnosed P.P. with Pedophilia, sexually
attracted to females, non-exclusive, because his criminal history
demonstrated his sexual arousal to female children between the
ages of twelve and fourteen. She testified that Pedophilia does
not spontaneously remit.
Dr. Paolillo also diagnosed P.P. with Other Specified
Personality Disorder with Antisocial Features, which is
characterized by a pervasive, persistent, maladaptive pattern of
behaviors and inner experience. She explained that the antisocial
features of P.P.'s personality manifest in a pattern of disregard
for the wellbeing of others, failure to conform to social norms,
lack of genuine remorse, and impulsive and manipulative
proclivities in pursuing young impressionable children for sex.
Dr. Paolillo also diagnosed P.P. with Alcohol Use Disorder,
mild, based on P.P.'s report that he was intoxicated when he
sexually assaulted E.G. The doctor explained that this disorder
does not by itself predispose P.P. toward sexual violence, but
alcohol "facilitates his expression of his sexual deviance, as
well as his antisocial tendencies. It's a disinhibiting factor.
It provides license to pursue behaviors that an individual would
typically stop themselves from pursuing."
9 A-4011-14T2
In forming her risk assessment, Dr. Paolillo considered
P.P.'s score of "6" on the STATIC-99R, his failure to comply with
supervisory conditions, and his substance abuse disorder that
serves as a disinhibiting influence on him and a component of his
sex assault cycle. She found no mitigating factors and that P.P.
had not benefitted from any treatment.
Dr. Paolillo concluded that P.P.'s Pedophilia and Personality
Disorder affect his emotional, volitional, and cognitive
capacities, and predispose him to commit sexually violent acts.
She opined that P.P.'s Alcohol Use Disorder could act as a
disinhibitor and "facilitate[] his expression of his sexual
deviance as well as his antisocial tendencies." She found P.P.
highly likely to sexually reoffend if not confined.
During his testimony, P.P. admitted he had sexual intercourse
with E.G. in 1995, and denied knowing whether she was over or
under the age of sixteen. He insisted he did not know his victims
were twelve or fourteen years old.
In a comprehensive oral decision, Judge Mulvihill found by
clear and convincing evidence that: P.P. was convicted of sexually
violent offenses; continues to suffer from a mental abnormality
or personality disorders of paraphilia and pedophilia that do not
spontaneously remit; and was highly likely to engage in further
10 A-4011-14T2
acts of sexual violence if not confined to a secure facility for
control, care, and treatment. The judge concluded that
[C]learly [P.P.] is a danger to the community.
It's not at all believable that he didn't
know the ages of these children when he
sexually abused them. And the State has
proven by clear and convincing evidence that
[P.P.] is a threat to the health and safety
of others because of the high likelihood of
his engaging in sexually violent acts. The
State has proven by clear and convincing
evidence that [P.P.] has serious difficulty
controlling his sexually harmful behavior.
It's highly likely he will not control his
sexually violent behavior and will reoffend
by clear and convincing evidence and has a
present serious difficulty with control, and
it's highly likely he will . . . reoffend by
clear and convincing evidence.
On appeal, P.P. contends that the State failed to prove by
clear and convincing evidence that he suffers from a present mental
abnormality and is a sexually violent predator with a high risk
of future recidivism.3 We disagree.
Our review of a commitment determination is extremely narrow.
R.F., supra, 217 N.J. at 174. "The judges who hear SVPA cases
3
We decline to address P.P.'s contention in his pro se
supplemental brief that classification of his strict liability
convictions as sexually violent offenses for the purpose of the
SVPA violates his due process rights. P.P. did not raise this
issue before Judge Mulvihill and it is not jurisdictional in nature
nor does it substantially implicate the public interest. Zaman
v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).
11 A-4011-14T2
generally are 'specialists' and 'their expertise in the subject'
is entitled to 'special deference.'" Ibid. "The final decision
whether a person previously convicted of a sexually violent offense
is highly likely to sexually reoffend lies with the courts, not
the expertise of psychiatrists and psychologists. Courts must
balance society's interest in protection from harmful conduct
against the individual's interest in personal liberty and
autonomy." Ibid. "A trial judge is 'not required to accept all
or any part of [an] expert opinion[ ].' The ultimate determination
is 'a legal one, not a medical one, even though it is guided by
medical expert testimony.'" Ibid. (quoting In re D.C., 146 N.J.
31, 59, 61 (1996)). We should not modify the judge's determination
"unless 'the record reveals a clear mistake.'" Id. at 175 (quoting
D.C., supra, 146 N.J. at 58). "So long as the trial court's
findings are supported by 'sufficient credible evidence present
in the record,' those findings should not be disturbed." Ibid.
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Governed by these standards, we discern no reason to disturb
Judge Mulvihill's decision. The documentary evidence and
testimony of Dr. Lewin and Dr. Paolillo, which Judge Mulvihill
found credible, amply supports the judge's findings that P.P.
presently suffers from both a mental abnormality and personality
disorders, and that as a result of his mental abnormality or
12 A-4011-14T2
personality disorder, he is highly likely to engage in further
acts of sexual violence if not confined. Dr. Lewin diagnosed P.P.
with a paraphilia characterized by arousal to prepubescent
females, and Dr. Paolillo diagnosed him with Pedophilia
characterized by his sexual arousal to female children between the
ages of twelve and fourteen. Both doctors opined that these
conditions predispose P.P. to commit future acts of sexual violence
and do not spontaneously remit.
Dr. Lewin and Dr. Paolillo also diagnosed P.P. with a
Personality Disorder, and opined this condition also predisposes
him to commit future sexually violent acts. Dr. Paolillo further
opined that P.P.'s risk to reoffend was heightened by his Alcohol
Use Disorder. Both doctors opined that P.P had not benefitted
from sex offender treatment.
We are satisfied that the record amply supports Judge
Mulvihill's decision that P.P. is a sexually violent predator who
suffers from a mental abnormality and personality disorder that
make him highly likely to engage in acts of sexual violence if not
confined to a secure facility for control, care and treatment.
Affirmed.
13 A-4011-14T2