IN THE MATTER OF THE CIVIL COMMITMENT OF J.C. (SVP-678-13, 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NOT FOR PUBLICATION WITHOUT THE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-1743-14T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF J.C., SVP-678-13.
__________________________________

Submitted August 8, 2017 – Decided August 15, 2017

Before Judges Sabatino and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
678-13.

Joseph E. Krakora, Public Defender, attorney
for appellant J.C. (Thomas G. Hand, 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).

PER CURIAM

J.C. is a resident of the Special Treatment Unit ("STU"), the

secure custodial facility designated for the treatment of persons

in need of commitment pursuant to the Sexually Violent Predator

Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-

27.34(a). He appeals from an order entered on October 27, 2014,

which civilly committed him to the STU after an evidentiary
hearing. We affirm substantially for the reasons set forth by

Judge Philip M. Freedman in his oral decision of that same date.

The relevant context is as follows. Under the SVPA, an

involuntary civil commitment can follow an offender's service of

a sentence, or other criminal disposition, when he or she "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.

As defined by the statute, a mental abnormality consists of

"a mental condition that affects a person's emotional, cognitive

or volitional capacity in a manner that predisposes that person

to commit acts of sexual violence." Ibid. Such a mental

abnormality or personality disorder "must affect an individual's

ability to control his or her sexually harmful conduct." In re

Civil Commitment of W.Z., 173 N.J. 109, 127 (2002). The statute

does not require a "complete loss of control." Id. at 128.

Instead, a showing of an impaired ability to control sexually

dangerous behavior will suffice to prove a mental abnormality.

Id. at 127; see also In re Civil Commitment of R.F., 217 N.J. 152,

173-74 (2014).

The State must prove at the SVPA commitment hearing:

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 a threat to the health and safety of others
because of the likelihood of [an SVPA
offender] engaging in sexually violent
acts . . . by demonstrating that the
individual has serious difficulty in
controlling sexually harmful behavior such
that it is highly likely that he or she will
not control his or her sexually violent
behavior and will reoffend.

[W.Z., supra, 173 N.J. at 132.]

The judge presiding over the hearing must address an individual's

"serious difficulty with control over dangerous sexual behavior,"

and the State must establish, by clear and convincing evidence,

that it is highly likely that the individual will reoffend. Id.

at 132-33; see also R.F., supra, 217 N.J. at 173.

As the Supreme Court underscored in R.F., the scope of

appellate review of judgments in SVPA commitment cases is

"extremely narrow." R.F., supra, 217 N.J. at 174 (internal

citations omitted). "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)). On appeal,

we give deference to the judicial findings from the commitment

hearings, not only in recognition of the SVPA judge's expertise,

but also because the judge has "the 'opportunity to hear and see

the witnesses'" and also to have "the 'feel' of the case, which a

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reviewing court cannot enjoy." Ibid. (quoting State v. Johnson,

42 N.J. 146, 161 (1964)).

For these sound reasons, the Court has instructed that an

appellate court should not modify the SVPA trial judge'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)). "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 Johnson, supra, 42 N.J. at 162).

The record in the present case reflects that J.C., who is

currently age thirty-eight, has been convicted of sexually

assaulting or attempting to sexually assault five different female

victims between the ages of fourteen and forty-one. In several

of those instances, defendant subdued the victims through physical

violence, the use of weapons, and threats of harm.

Specifically, J.C. was first charged with and pled guilty to

fourth-degree criminal sexual conduct, which he committed in June

2002 by rubbing his penis between the buttocks of a woman who was

shopping in a retail store. He was sentenced to probation for

this offense in November 2003.

J.C. thereafter pled guilty in June 2005 to attempted criminal

sexual assault, stemming from his attack of a young woman who he

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grabbed from behind as she was reaching into her purse for her

house keys. J.C. forced the woman onto a grassy area of her yard,

where he made her remove her pants, then began kissing her and

grabbing her breasts. The woman cried for help. J.C. fled the

scene, but was apprehended. In September, the court sentenced

J.C. to a custodial sentence at the Adult Diagnostic Treatment

Center ("ADTC"), along with Megan's Law registration requirements

and three years of parole supervision following his incarceration.

The record further shows that in October 2014 defendant

sexually attacked three more female victims. The victims included

J.H., a fourteen-year-old girl who was walking to her school bus

and who defendant accosted and attempted to vaginally penetrate

with his penis; a twenty-four-year-old woman Z.T. who he forced

to undress at knifepoint and vaginally assaulted; and a twenty-

three-year-old woman D.B., who he grabbed by the throat and then

digitally penetrated her vagina. J.C. pled guilty to second-

degree attempted sexual assault of J.H., first-degree aggravated

sexual assault of Z.T., and second-degree attempted sexual assault

of D.B. He was sentenced to a seven-year custodial term for the

offense against J.H., a ten-year custodial term for the offense

against Z.T., and a seven-year custodial term for the offense

against D.B. All of the prison terms were made concurrent with

one another.

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 J.C. served nine years and eight months of his sentence before

being referred to STU in 2013. In August 2013, the State filed a

petition seeking J.C.'s involuntary civil commitment under the

SVPA. The State arranged to have J.C. professionally evaluated,

but he declined to cooperate in an interview. Consequently, the

State arranged for two experts to review J.C.'s pertinent records

and evaluate him under the statutory commitment criteria based

upon that documentary review: a psychiatrist, Dr. Albert M.

Goldwaser, and a psychologist, Dr. Jamie R. Canataro.

The State presented expert testimony from Dr. Goldwaser at

the commitment hearing, and also moved into evidence with consent

of J.C.'s counsel the written forensic evaluation of Dr. Canataro.

Both of the State's experts opined that J.C. suffers from a

qualifying mental abnormality within the scope of the statute, and

meets the criteria for confinement. Dr. Goldwaser diagnosed J.C.

with paraphilic disorder, found he has serious difficulty

controlling his sexually offensive behavior, and is highly likely

to sexually reoffend if he is not confined to the STU for

treatment.

Similarly, Dr. Canataro diagnosed J.C. with "Other Specified

Paraphilic Disorder" and a provisional Sexual Sadism Disorder.

Dr. Canataro rated J.C. within the high-risk range to sexually

6 A-1743-14T5
recidivate. Dr. Canataro concurred with Dr. Goldwaser that J.C.

is highly likely to sexually reoffend if not confined.

J.C. did not present any competing expert testimony. He did

not testify or call any witnesses.

After considering these proofs, Judge Freedman issued a

lengthy oral opinion concluding that the State had met its burden

under the SVPA to warrant J.C.'s commitment to the STU. The judge

made the following key findings:

I find by clear and convincing evidence
that the record in this case clearly supports
the opinions of the two experts who testified,
one actually testified in court, the other
whose report was put in as testimony. Their
testimony in both cases is uncontradicted.

The cross examination of Dr. Goldwaser
did not affect his opinion in any way in my
view. I credit the opinion of both of these
experts, again, who are uncontradicted, and
based on my review of the record, their – their
opinions, which I find credible and supported
by the record, I find by clear and convincing
evidence that [J.C.] does suffer from a mental
abnormality in the form of a paraphilia, and
most likely a personality disorder as well.

He meets all the adult criteria for
antisocial personality disorder, but he --
since he -- there's no records of him prior
to 2000 when he came to the United States, one
of the requirements of the -- of the DSM-V
that there be some evidence of conduct
disorder before the age of 15 was unknowing -
- unknowable by the -- by these experts.

So, I'm not – I don't believe he -- there
is a diagnosis now of that, but his -- his

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 conduct his attitude and so on, as Dr.
Goldwaser testified, is -- is strong support
for personality disorder as well as the -- as
well as the paraphilia.

He is clearly as a result of this
diagnosis of paraphilia predisposed to engage
in acts of sexual violence as his record
without question shows. His numbers of his
arrest, his convictions in a relatively short
period of time. He's had -- he -- he has had
very little benefit from treatment, some, but
not sufficient to justify -- consider a
conditional discharge.

I find by clear and con -- convincing
evidence that his predisposition is such that
if is he were released, that -- that he's
affected in all three areas, particularly the
volitional area, and that his predisposition
is such that if he were released, he would
have serious difficulty controlling his
sexually violent behavior, and would within
the reasonably foreseeable future be highly
likely to engage in acts of sexual violence.

He, therefore, is subject to commitment
under the SVPA and I will commit him under the
test, under the balancing test of the
Appellate Division in the W.Z. case. What he
tends to do is very dangerous, use of weapons,
death threats, assaulting women on the street
and in public and so on.

The nature of his attacks are very, very
dangerous, using force above and beyond what's
needed to -- to have compliance as -- as the
psychologist testified. And so that it's very
dangerous, he has a high propensity, he's
clearly a very dangerous person under the test
of W.Z. and committable under the SVPA.

On appeal, J.C. raises the following arguments:

POINT I

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 THE TRIAL COURT ERRED IN FAILING TO ORDER THAT
J.C. BE TRANSFERRED TO THE CUSTODY OF
IMMIGRATION OFFICIALS TO ALLOW THEM TO BEGIN
DEPORTATION PROCEEDINGS AS REQUIRED BY FEDERAL
LAW BECAUSE J.C. HAD COMMITTED A DEPORTABLE
OFFENSE.

POINT II

THE TRIAL COURT ERRED IN FINDING J.C. WAS
PRESENTLY HIGHLY LIKELY TO COMMIT A SEXUAL
OFFENSE BECAUSE THE TESTIMONY PRESENTED DID
NOT PROVIDE A BASIS FOR A FINDING OF A MENTAL
ABNORMALITY NOR DID IT PROVIDE A BASIS FOR A
PRESENT RISK TO SEXUALLY REOFFEND[, THE] TRIAL
COURT ERRED IN FINDING J.C. WAS PRESENTLY
HIGHLY LIKELY TO COMMIT A SEXUAL OFFENSE
BECAUSE THE TESTIMONY PRESENTED DID NOT
PROVIDE A BASIS FOR A FINDING OF MENTAL
ABNORMALITY NOR DID IT PROVIDE A BASIS FOR A
PRESENT RISK TO SEXUALLY REOFFEND.

Neither of these arguments have any merit.

As an initial matter, we agree with the State that the trial

court correctly denied the request of J.C., a native of Mexico,

to adjourn the commitment hearing and have him transferred to

federal immigration authorities for purposes of deportation. We

concur with Judge Freedman that not even our State's highest court

has the jurisdiction or authority to cause the deportation of an

individual, even if he requests it. Nor did the trial court err

in deciding to go forward with the commitment hearing,

notwithstanding J.C.'s argument that he has committed deportable

9 A-1743-14T5
offenses and that his commitment to the STU might somehow impede

or forestall the federal deportation process.

The executive branch of the federal government, not the

judicial branch, has discretion on when to deport detainees and

may opt to defer action due to "humanitarian reasons or simply for

its own convenience." Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471, 483, 119 S. Ct. 936, 943, 142 L. Ed. 2d 940, 953

(1999). When a deportation order has been issued by a federal

immigration court, a detainee cannot demand that the federal

Immigration and Customs Enforcement ("ICE") agency take action on

that order. Perez v. INS, U.S. Dep't of Justice, 979 F.2d 299,

301 (3d Cir. 1992). Case law establishes while ICE cannot hold a

detainee in federal custody for more than six months, a state may

incarcerate a defendant for unrelated offenses without violating

the ICE timeline. Mederos v. Murphy, 762 F. Supp. 2d 209, 216 (D.

Mass. 2010) (applying Clark v. Suarez Martinez, 543 U.S. 371, 125

S. Ct. 716, 160 L. Ed. 2d 734 (2005) to a state court's criminal

sentence of an immigrant as to whom a federal court had issued a

deportation order).

J.C. has presented no case law to the contrary. He argues

that the trial court violated Arizona v. United States, 567 U.S.

387, 395, 132 S. Ct. 2492, 2499-2500, 183 L. Ed. 2d 351, 366-67

(2012), by "deny[ing] immigration officials the 'broad discretion'

10 A-1743-14T5
of whether to remove J.C. or not." Although the Court's opinion

in Arizona outlines the broad discretion afforded to federal

officials to pursue removal, nothing in that decision obligates

states to delay or defer parallel proceedings without a request

from ICE or the United States Attorney General.

A United States District Court does not have jurisdiction to

enter a deportation order without a request by the United States

Attorney and a concurrence from the ICE commissioner. See, e.g.,

United State v. De La Luz Angel-Martinez, 988 F. Supp. 475, 481

(D.N.J. 1997) (refusing to consider a detainee defendant's offer

to submit to deportation as a mitigating factor in sentencing

because the proffer had no legal effect without the executive

branch's request to deport him). Moreover, a convicted felon

cannot compel the United States to deport him before serving his

sentence. See, e.g., Thye v. United States, 109 F.3d 127, 128 (2d

Cir. 1997).

Further, it has been held that a state court lacks

jurisdiction to mandate the United States Attorney General to

deport anyone, nor does a deportation order deny a state court the

ability to civilly commit a defendant. In re Civil Commitment of

Richards, 738 N.W.2d 397, 400 (Minn. Ct. App. 2007). The fact

that a defendant "may be deported by the Department of Immigration

11 A-1743-14T5
and Homeland Security in the future does not make him an improper

candidate for civil commitment." Ibid.

Turning to the merits, we are satisfied that the State readily

met its evidentiary burden in this case under the SVPA, for the

reasons cogently articulated by Judge Freedman. It is undisputed

that J.C. has committed several sexual offenses that meet the

SVPA's predicate criteria. See N.J.S.A. 30:4-27.26(b). In

addition, there is abundant credible and compelling proof in this

record – including the unchallenged opinions of the State's two

experts – to sustain the trial court's finding that J.C. is a high

risk to sexually reoffend and should be treated and confined at

the STU. While we are mindful that defendant's convictions

occurred several years ago, the passage of time alone does not

warrant an inference that J.C. is no longer dangerous and prone

to sexually reoffend. His refusal to submit to an updated expert

examination should not redound to his strategic benefit in opposing

the State's well-founded petition.

Affirmed.

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