IN THE MATTER OF THE CIVIL COMMITMENT OF A.E.F., SVP-306-03 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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
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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]
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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
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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
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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
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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.
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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
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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.
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