IN THE MATTER OF THE CIVIL COMMITMENT OF E.B. (SVP-724-15, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-2404-15T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF E.B. – SVP-724-15.
_____________________________________
Submitted October 10, 2017 – Decided November 17, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
724-15.
Joseph E. Krakora, Public Defender, attorney
for appellant E.B. (Nancy C. Hayes,
Designated Counsel, on the brief).1
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
1
E.B. filed a supplemental "pro se" brief a week after the
State filed its brief. We have not considered this brief
because it was neither authorized under our Court Rules, see
Rule 2:6-11(d), nor by order.
E.B. appeals from the January 16, 2016 judgment committing
him to the Special Treatment Unit (STU) pursuant to the Sexually
Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
Following our review of the record and applicable legal
principles, we reverse and remand for a new hearing.
I
In 1992, E.B. pled guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1). He was sentenced to an eight-year term
of imprisonment, subject to a four-year period of parole
ineligibility. In addition, he was sentenced to Community
Supervision for Life (CSL) and ordered to register under Megan's
Law. During the plea colloquy, E.B. stated he, along with other
men, participated in a gang attack upon a group of young girls
at a public swimming pool. E.B. admitted he vaginally
penetrated one of the girls in the pool. The victim was less
than sixteen but older than thirteen years of age; E.B. was
twenty-two years old at the time.
In 2002, E.B. pled guilty to second-degree sexual assault,
N.J.S.A. 2C:14-2(b). It is not disputed E.B. fondled the
breasts and buttocks of an eleven-year old female and engaged in
several sexually-explicit telephone conversations with her. He
was sentenced to a ten-year term at the Adult Diagnostic and
Treatment Center (ADTC), subject to a five-year period of parole
2 A-2404-15T5
ineligibility. At the time of his sentence, he had been
convicted of ten indictable offenses, including the two sexual
offenses to which he pled guilty.
In 2008, E.B. was released from ADTC. In an ADTC
"Termination Report," two psychologists stated E.B. understood
his deviant arousal pattern and offending dynamics, and had
developed coping mechanisms to deal with high risk situations.
An addendum to the "Termination Report" stated that although
objective testing suggested E.B. was at high risk for
reoffending, from a clinical perspective his overall risk of
committing a sexual offense was substantially reduced by the
significant gains he had achieved in treatment, indicating he
had adequate resources to avoid sexually reoffending. The
psychologists recommended that upon his discharge, E.B. "avoid"
children.
There is reference in the record to E.B. being charged with
violating the terms of CSL in 2010, for which he was sentenced
to an eighteen-month term of imprisonment. The record does not
reveal how he violated the terms of CSL, but he was not
convicted of a sexual offense. There is also reference to his
violating the terms of CSL in 2011. Again, the record does not
reflect how he violated the terms of CSL or the disposition of
3 A-2404-15T5
this violation, but there is no indication the violation was
related to committing a sexual offense.
In 2015, the State filed a petition seeking to have E.B.
involuntarily committed under the SVPA because various police
reports indicated E.B. contacted or attempted to have contact
with eight adolescent girls from October 2009 to April 2014.
According to these reports, the alleged victims told the police
E.B. followed or approached them as they walked down the street,
and attempted to engage them in conversation. He posed
questions to some victims, which included asking their name,
age, telephone number, whether the girl was a virgin, engaged in
oral sex, or would have sex with him. Some complained he drove
up to and cut off their path in order to speak to them.
In July 2014, E.B. pled guilty to violating CSL on the
grounds he initiated contact with one of the girls and for
failing to notify the police of a change of address. The record
is somewhat unclear, but it appears E.B. admitted he was in a
van and called out to a girl on a sidewalk from his vehicle,
stating, "Yo little girl, come here, come here." The girl did
not allege E.B. engaged in conduct different from what he
admitted. Defendant was sentenced in the aggregate to eighteen
months in prison. Defendant was not convicted of any other
4 A-2404-15T5
offense in connection with his alleged contacts with underage
females after his release from the ADTC.
While serving his sentence, E.B. submitted to a
psychological examination, and scored a +6 on the "Static-99"
test. According to the evaluator, this score indicated E.B. was
at high risk for committing a sexual offense. The evaluator
recommended E.B. be referred to the appropriate deputy attorney
general to assess whether he should be recommitted as a sexually
violent predator.
Following a civil commitment hearing in January 2016, the
court entered an order involuntarily committing E.B. to the STU.
At the hearing, a psychiatrist and psychologist testified on
behalf of the State. In addition, various documents, including
the written reports of the psychiatrist and psychologist, were
admitted. Defendant did not call any witnesses or seek to
introduce any documentary evidence. The principal testimony by
psychiatrist Roger Harris, M.D. is as follows.
In addition to interviewing E.B. for an hour, Harris
testified he reviewed presentence reports, clinical
certificates, ADTC reports, and prior forensic evaluations;
however, Harris did not state he relied upon any of these
documents to form his opinions. But, as addressed below, Harris
relied on the aforementioned police reports to form his opinion
5 A-2404-15T5
E.B. is afflicted with antisocial personality disorder and is at
high risk for reoffending and, thus, should be involuntarily
committed.
Harris acknowledged that, in 2008, the ADTC determined E.B.
could be released from the STU, but in Harris's opinion E.B.'s
conduct after he was released, as reflected by the subject
police reports, was inconsistent with the ADTC's finding he was
at low risk for reoffending. According to Harris, the police
reports revealed E.B. pursued teenage girls after his release
from the ADTC and attempted to "lure them, attempt[ed] to have
contact with them, and [was] sexually explicit with them[.]"
Harris noted that, even though E.B. was unsuccessful in
attaining any physical contact with any of the girls,
I don't think it was his intent to fail
. . . . So the fact [he] did not end up,
that we know of, having contact, I don't
think is the . . . decisive issue at all
when he has already been convicted for
underage girls and he is engaging in the
behavior to gain access. . . . The intent,
I think, is clearly to have sexual contact
with them, not to . . . just have a
conversation with them and drive off.
Harris acknowledged E.B. denied engaging in any of the
conduct alleged in the police reports, except for the one
incident when he called out to the girl on a sidewalk and
stated, "Yo little girl, come here, come here."
6 A-2404-15T5
Harris diagnosed E.B. with paraphilia for teenage girls
because, despite his two convictions for sexual assault and the
sanctions resulting from such convictions, he continued to
pursue young girls for sexual purposes after his release from
the ADTC, as documented in the subject police reports. In his
opinion E.B. took "great risks" when he pursued these girls,
which is evidence E.B. has "very strong deviant arousal" that he
cannot control.
Harris further opined E.B. has severe antisocial
personality disorder, a diagnosis Harris based upon E.B.'s
prolonged inability to conform his conduct to societal norms, as
evidenced by all of his convictions, not just those which were
sexually related. In addition, Harris noted E.B. had a score of
six on the Static-99 test. According to Harris, this score, his
anti-social personality disorder, and paraphilia for teenage
girls makes it highly likely E.B. will sexually reoffend unless
confined to a STU.
Nicole Paolillo, Psy.D., also testified. She interviewed
E.B. for an hour and appears to have reviewed the same documents
as Harris, including the police reports pertaining to E.B.'s
contacts with the subject teenage girls after his discharge from
the ADTC. Paolillo testified she found E.B.'s "sexual offending
behavior" significant because of its duration and persistence,
7 A-2404-15T5
commenting such behavior started in 1991 and last occurred in
2014. She stated the fact he is afflicted with antisocial
personality disorder and experiences deviant arousal increases
the risk he will reoffend. The "Psychopathy Checklist–Revised"
test she administered to him revealed E.B. is in the "high range
of psychopathic traits," and his Static-99 score also indicates
he is at high risk for committing a sexual offense.
Paolillo testified the treatment E.B. received at the ADTC
was ineffective, "otherwise he wouldn't have so many new charges
for committing sexually . . . deviant acts or behaving in a way
that was expressing a desire to act upon a deviant arousal." In
her report, admitted into evidence, she stated given his conduct
with underage girls after his release from ADTC, E.B. "continues
to fall victim to his deviant arousal and antisocial thinking."
Paolillo also diagnosed E.B. as having paraphilic disorder
because of his arousal to teenagers, antisocial personality
disorder, and cannabis use disorder. She opined E.B. is
predisposed to commit sexually violent acts and, based upon the
record and her interview of him, is highly likely to engage in
future deviant sexual acts if released into the community.
Based upon the experts' testimony, the court determined
there was clear and convincing evidence E.B. suffers from a
mental abnormality (paraphilia), antisocial personality
8 A-2404-15T5
disorder, and a substance abuse disorder. The court found these
afflictions, either individually or in combination, put E.B. at
high risk for engaging in acts of sexual violence and, thus,
E.B. had to be committed.
The court explained it took into account the 1992 and 2002
convictions for sexual offenses, "the conduct relied on by the
experts in making their opinions[,]" and the admissions E.B.
made to his probation officer. These admissions are those E.B.
made when he pled guilty to violating the terms of CSL in 2014.
II
On appeal, E.B. asserts the following argument for our
consideration:
POINT I: THE STATE FAILED TO PROVE BY CLEAR
AND CONVINCING EVIDENCE THAT [E.B.] IS A
SEXUALLY VIOLENT PREDATOR AND THAT THE RISK
OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY
HIGH LEVEL TO JUSTIFY CONTINUED CIVIL
COMMITMENT UNDER THE CURRENT TREATMENT PLAN
In his brief, E.B. clarifies his primary argument is Harris
and Paolillo's opinions are based upon incompetent evidence,
specifically, the subject police reports. E.B. notes the
allegations in the police reports were never substantiated,
except for the claim in which he admits he yelled to a girl in
the street, "Yo, little girl, come here, come here." Therefore,
E.B. contends, the court erred when it found the State provided
9 A-2404-15T5
sufficient proof to justify his commitment. E.B. also argues
the bases for the experts' conclusion he suffered from
antisocial personality disorder were inadequate.
Under the SVPA, an involuntary civil commitment may be
ordered following an offender's service of a sentence, or other
criminal disposition, if 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.
At a commitment hearing, the State must prove by clear and
convincing evidence the individual poses:
a threat to the health and safety of others
because of the likelihood of his or her
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.
[In re Commitment of W.Z., 173 N.J. 109, 130
(2002); see also In re Civil Commitment of
J.H.M., 367 N.J. Super. 599, 608 (App. Div.
2003), certif. denied, 179 N.J. 312 (2004);
N.J.S.A. 30:4-27.32(a).]
Our Supreme Court recently emphasized an appellate court's
review of a commitment under the SVPA "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)). We must "give deference to
10 A-2404-15T5
the findings of our trial judges because they have the
'opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'"
Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
Moreover, "[t]he 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)).
Therefore, a trial court's determination is accorded substantial
deference, and may "be modified only if the record reveals a
clear mistake." D.C., supra, 146 N.J. at 58.
Under the SVPA, "[i]f 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 the custody, care and treatment of
sexually violent predators." N.J.S.A. 30:4-27.32(a). Three
requirements must be satisfied to classify a person as a
sexually violent predator:
(1) the individual has been convicted of a
sexually violent offense; (2) he suffers
from a mental abnormality or personality
disorder; and (3) as a result of his
psychiatric abnormality or disorder, "it is
highly likely that the individual will not
11 A-2404-15T5
control his or her sexually violent behavior
and will reoffend."
[R.F., supra, 217 N.J. at 173 (citations
omitted) (quoting W.Z., supra, 173 N.J. at
130); see also N.J.S.A. 30:4-27.26
(enumerating the three requirements).]
There is no dispute E.B. has been convicted of a sexually
violent offense. He pled guilty to second-degree sexual assault
in 1992 and in 2002. The question is whether he has antisocial
personality disorder and, as a result of this disorder, is
highly likely to engage in sexually violent behavior and
reoffend. E.B. contends because the experts largely base their
opinions upon the unproven allegations contained in the police
reports, the State has failed to prove he is highly likely to
reoffend. We agree.
To the extent an expert's opinion rests on inaccurate or
disputed facts, the expert's reliance is unreasonable. In re
Civil Commitment of A.E.F., 377 N.J. Super. 473, 489-91 (App.
Div.), certif. denied, 185 N.J. 393 (2005). When an expert
relies on such information, the expert undermines the foundation
for and, therefore, the evidential worth of his or her opinion.
Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8-9 (App.
Div.), certif. denied, 165 N.J. 523 (2000).
For that reason, in In re A.E.F., this court noted serious
questions would be raised if an expert's opinion supporting a
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commitment depends upon unproven allegations of sexual offenses.
377 N.J. Super. at 490. We noted if an unproven allegation
provides "a significant building block" in an expert's opinion,
"it would present a troubling issue since significant state
action, such as SVPA commitment, cannot and should not be based
on unproven allegations of misconduct." Ibid.
Here, the record demonstrates unproven allegations served
as "significant building blocks" in both experts' opinions.
Specifically, their opinions finding E.B. had antisocial
personality disorder and a present propensity to commit acts of
sexual violence if not committed to the STU were based on
unproven allegations of E.B.'s contact with teenage girls after
his discharge from the ADTC. Both accorded considerable weight
to the victims' allegations despite the absence of evidence
verifying such claims, with the exception of the one in which
E.B. admitted calling out to a girl on a sidewalk in the manner
described above. As to this one proven allegation, there is no
evidence the experts believed E.B.'s conduct on this one
occasion was sufficient to conclude he was highly likely to
reoffend.
Accordingly, the trial court's conclusion the State proved
by clear and convincing evidence commitment is warranted under
the SVPA is unsupported by the record. The experts' opinions
13 A-2404-15T5
are not supported by competent evidence, a deficiency warranting
a remand and a new hearing to assess E.B.'s current condition
and risk of sexual violence.
The January 16, 2016 judgment is reversed and the matter
remanded for further proceedings consistent with this opinion.
14 A-2404-15T5