IN THE MATTER OF THE CIVIL COMMITMENT OF H.E., SVP-518-08 (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NOT FOR PUBLICATION WITHOUT THE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-4826-16T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF H.E., SVP-518-08.
________________________________
Argued March 22, 2018 – Decided June 7, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. SVP-
518-08.
Joan Van Pelt, Designated Counsel, argued the
cause for appellant H.E. (Joseph E. Krakora,
Public Defender, attorney).
Cindi Collins, Assistant Attorney General,
argued the cause for respondent State of New
Jersey (Gurbir S. Grewal, Attorney General,
attorney).
PER CURIAM
H.E. appeals from the June 14, 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 H.E.'s prior criminal history or events
since his original admission to the STU in 2009. They are
recounted at length in our prior opinions, In re Civil Commitment
of H.E., No. A-5298-08 (App. Div. Feb. 8, 2012), In re Civil
Commitment of H.E., No. A-2826-13 (App. Div. Dec. 2, 2014), and
In re Civil Commitment of H.E., No. A-2412-15 (App. Div. June 8,
2016). Suffice it to say that H.E. has an extensive criminal
history consisting of non-sexual and sexual offenses. H.E.'s
predicate convictions arose out of his 1999 guilty pleas to
aggravated sexual assault upon a fifteen-year-old female
acquaintance and aggravated criminal sexual contact upon a twenty-
four-year-old stranger, for which he was sentenced to a twelve-
year custodial term, subject to the No Early Release Act, N.J.S.A.
2C:43-7.2. 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 Philip M. Freedman on May 12 and 22, 2017.
At the hearing, the State relied on the expert testimony of
psychiatrist Roger Harris, M.D., and psychologist Nicole Paolillo,
Psy. D., a member of the STU's Treatment Progress Review Committee
2 A-4826-16T5
(TPRC), both of whom agreed on H.E.'s diagnosis and opined that
his risk to sexually reoffend remained high. H.E. relied on the
expert testimony of psychologist Gianni Pirelli, Ph. D., who agreed
with the diagnosis of the State's experts but disagreed that H.E.'s
risk to sexually reoffend was high. After interviewing H.E. and
reviewing previous psychiatric evaluations, STU treatment records,
and related documents, Harris and Pirelli prepared reports, which
were admitted into evidence. Although Paolillo did not author the
TPRC report, which was also admitted into evidence, she
participated in the review, which included interviewing H.E.
Various treatment notes and other records were also admitted into
evidence.
Dr. Harris concluded that H.E., born February 1, 1975, 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 H.E.'s "pervasive
pattern for the disregard and the violation of others," his failure
"to conform to social norms" resulting in repeated arrests, his
"impulsive[ness,]" "irritability[,]" "aggressiveness[,]"
"reckless disregard for the safety of others[,]" "lack of remorse,"
"rationalizing" and "indifference to hurting others[,]" Dr.
Harris diagnosed H.E. with antisocial personality disorder. Dr.
3 A-4826-16T5
Harris also gave H.E. a score of five on the Static-99R,1
indicating an above average risk to sexually reoffend. However,
Dr. Harris testified that "[t]his does not include dynamic or
psychological factors, and it doesn't include his sexualized
violence, his history of impulsivity, his childhood behavioral
problems and his antisocial attitudes and behaviors . . . ."
Dr. Harris also found evidence of "conduct disorder" with
onset before age fifteen based partly on H.E.'s adjudication of
delinquency for sexual assault in 1991 for "switching partners"
without consent. H.E. reported that the probationary disposition
he received for the offense did not deter him because "he was
selling drugs, stealing cars, running the streets, not taking
responsibility . . . ." According to Dr. Harris, "when you offend
as a juvenile, and also offend as an adult, . . . you have a
greater risk to sexually reoffend in the future . . . ." Dr.
Harris also found significance in the fact that the predicate
offenses were one month apart, that the second victim was a
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). 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)).
4 A-4826-16T5
stranger to H.E., and that there was an "escalation of violence
overall . . . ." According to Dr. Harris, these factors increased
H.E.'s risk of sexually reoffending and suggested that H.E. was
"having greater difficulty inhibiting and controlling his sexually
aggressive drive . . . ." In addition, because H.E. reported
having "consensual sexual partners during this time, . . . clearly
that was not sufficient for his sexual gratification."
Dr. Harris also diagnosed H.E. with alcohol and cannabis use
disorders, based on his history of alcohol use beginning at age
thirteen and marijuana use beginning at age sixteen. Dr. Harris
explained that "the use of alcohol or cannabis can lower one's
threshold to act impulsively, to lack control of one's aggression
and sexual drive, so it puts one at greater risk to reoffend."
Dr. Harris found H.E.'s intelligence to be within the average
or slightly lower than average range. However, Dr. Paolillo
testified that although testing "placed him in a borderline range
of intellectual functioning[,]" H.E. did not "present as a low
functioning individual based on his cognitive skills[,]" and she
saw no indication that he struggled with communicating or
understanding.
Dr. Harris described H.E. as an "active participant" in
treatment and Dr. Paolillo opined that H.E. "has received a
mitigating therapeutic experience" just by virtue of his exposure
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to treatment. Since 2012, H.E. has been in Phase 3A of treatment,
which Dr. Paolillo characterized as "the core phase of
treatment[,]" but he had been rejected by the more advanced
Therapeutic Community (T.C.) multiple times, reportedly because
he denied culpability of his predicate offenses. According to Dr.
Harris, while "denial of th[ese] kind[s] of aggressive sexual
offenses does not appear to predict risk in the future[,]" by
virtue of his denials, H.E. was "denying himself an opportunity
to flesh out both his sexual offense cycle . . . to establish
[relapse prevention] skills that address the nature of his
aggression towards women, his violence, [and] his strong sexual
drive."
In addition, Dr. Harris noted that H.E. was placed on MAP
this past year for having a USB in his possession and for
threatening a woman on the telephone, an accusation he denied.
H.E. was also placed in the T.C.C.2 when he was in a physical
altercation with another resident and claimed he was assaulted by
the resident although he had no "conflict with the individual."
Dr. Harris pointed out that these incidents evidenced a pattern
of H.E. "disowning" and not taking responsibility for his own
aggression, and "trying to essentially sanitize the record."
2
Dr. Harris and Dr. Paolillo explained that the T.C.C. is
"basically an area for him to be isolated" for his protection.
6 A-4826-16T5
According to Dr. Harris, "[d]isowning the level of aggression that
he engages in is at odds with . . . how one mitigates risk to
sexually reoffend" and "has short circuited [H.E.'s] ability to
move forward in treatment . . . ."
Although Dr. Pirelli agreed that H.E.'s diagnoses were part
of his offending, and predisposed him to sexually reoffend at some
point in time, he opined that they have been "mitigated
significantly" and no longer impaired his volitional capacity to
control himself. According to Dr. Pirelli, while antisocial
personality disorder is not "curable[,]" H.E.'s "antisocial
personality disorder related risks have decreased" for "a variety
of reasons[,]" including H.E.'s age and environmental factors,
such as H.E. having a fiancé and adult children. To support his
opinion, Dr. Pirelli administered the Risk for Sexual Violence
Protocol (RSVP), "a structured professional judgment" measure,
which included "[twenty-two] empirically supported sexual violence
risk factors across five domains[,]" consisting of sexual violence
history, psychological adjustment, mental disorder, social
adjustment, and manageability.3
3
Dr. Harris disagreed with Dr. Pirelli's RSVP scoring of H.E.
For example, according to Dr. Harris, Dr. Pirelli did not account
for H.E.'s high score of twenty-six on the PCL-R or the psychopathy
checklist revised, which provided a dimensional score that
represented the extent to which an individual matched the
7 A-4826-16T5
Dr. Pirelli testified that although H.E. denied his predicate
offenses, his assessment of H.E. encompassed both offenses,
despite the fact that Dr. Pirelli questioned the reliability of
the second victim's identification of H.E. as her assailant and
Dr. Pirelli referred to the first conviction as the only
"compelling adult offense." To further support his opinion, Dr.
Pirelli pointed to H.E.'s most recent treatment plan, which
reported either moderate or good progress in six out of seven
areas. Dr. Pirelli concluded that H.E. was sufficiently in control
of his behavior to be discharged with an appropriate structured
discharge plan.
In an oral opinion rendered on June 14, 2017, Judge Freedman
found by clear and convincing evidence that H.E. "has, in fact,
committed sexually violent offenses which bring him within the
purview of the statute[;]" that he "suffer[s] from a personality
disorder, antisocial personality disorder, and an alcohol and drug
use disorder," that in tandem affect him emotionally, cognitively,
prototypical psychopath. The higher the score, the closer the
match, and presumably the greater the confidence that the
individual is a psychopath. An individual receiving a score of
thirty or above met the diagnostic criteria for psychopathy. Dr.
Harris believed that while H.E.'s score did not meet the diagnostic
criteria for a psychopath, it indicated psychopathic traits
consistent with his antisocial personality disorder diagnosis.
Dr. Harris also disagreed with Dr. Pirelli's premise that there
was no diversity or escalation in H.E.'s sexual offending history.
8 A-4826-16T5
and volitionally, and "clearly . . . predispose him to engage in
acts of sexual violence[;]" and that if "released he would have
serious difficulty controlling his sexually violent behavior and
would be highly likely in the reasonably foreseeable future to
engage in acts of sexual violence."
After articulating the applicable legal principles,
recounting the testimony of all three experts, and detailing H.E.'s
treatment record at the STU, the judge observed "[t]his case is
primarily one of treatment progress." The judge noted the experts'
agreement as to H.E.'s diagnosis, and pointed out that their
"disagreement really rest[ed] on their perception of treatment
progress." The judge acknowledged that H.E. has progressed but
credited the opinions of the State's experts that "[H.E.] has not
progressed far enough, and still remains highly likely [to sexually
reoffend.]" The judge explicitly rejected Dr. Pirelli's
assessment as to the extent of H.E.'s progression in treatment,
finding that "Dr. Pirelli [was] totally minimizing, along with
[H.E.], the nature of his offending in the . . . two predicate
cases . . . ."
As a result, the judge did not "credit [Dr. Pirelli's] view
that [H.E.] [was] ready to be discharged." Instead, the judge
credited the testimony of the State's experts that "[H.E.'s]
relapse prevention skills [were] not sufficient because there
9 A-4826-16T5
[was] insufficient information being put into his cycle, which
[was] the basis of his relapse prevention skills." The judge
agreed that H.E. has participated satisfactorily, his attitude has
changed, and he has improved the manner in which he conducts
himself at the institution. However, according to the judge, H.E.
has not dealt with the issues that are raised by his predicate
offenses and he was
going to have to come to grips with the
dynamics of those two offenses which he
totally, at this point, denies. He admits
knowing one of the victims, but denies any
sexual contact and totally denies the second
offense. And Dr. Pirelli apparently agrees
with him by looking at part of the evidence
in the record.
Judge Freedman entered a memorializing order continuing H.E.'s
commitment and this appeal followed.
On appeal,4 H.E. argued Judge Freedman erred in concluding
that the State met its burden of proof. H.E. asserted that the
judge's reliance on his treatment progress was misplaced because,
unlike paraphilia that does not spontaneously remit, his
antisocial personality disorder diagnosis declines with age
regardless of treatment effect and H.E. is now in his forties and
4
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-4826-16T5
his predicate offenses occurred two decades ago. 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 . . . .'"
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).
"[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
11 A-4826-16T5
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.
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 (second and third 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).
We find no clear mistake on this record. We are satisfied
that the record amply supports Judge Freedman's finding that H.E.
suffers from antisocial personality disorder and alcohol and drug
use disorders, a necessary predicate for continued commitment
under the SVPA. See e.g., In re Civil Commitment of D.Y., 218
12 A-4826-16T5
N.J. 359, 381 (2014). Based on credible expert testimony, the
judge determined that H.E.'s disorders, 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
J.P., 339 N.J. Super. 443, 459 (2001), was proper.
Affirmed.
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