IN THE MATTER OF THE CIVIL COMMITMENT OF W.W. (SVP-667-13, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1183-19T5
IN THE MATTER OF THE CIVIL
COMMITMENT OF W.W.,
SVP-667-13
_____________________________
Submitted January 12, 2021 – Decided January 26, 2021
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-667-13.
Joseph E. Krakora, Public Defender, attorney for
appellant W.W. (Jared I. Mancinelli, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey (Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen
Slocum, Deputy Attorney General, on the brief).
PER CURIAM
Appellant W.W. appeals from an October 16, 2019 Law Division order,
which found him to be a sexually violent predator and continued his involuntary
commitment in the special Treatment Unit (STU) pursuant to the Sexually
Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
A judge committed W.W. to the STU in February 2013 pursuant to the
SVPA. The events that culminated in his commitment, including the sexual
assaults he committed against developmentally disabled women, are recounted
in our decision that affirmed that committal order and need not be repeated here.
In re Civil Commitment of W.W. (W.W. I), No. A-3281-12 (Apr. 18, 2016),
certif. denied, 327 N.J. 353 (2016).
Following a review hearing, a judge found "the State had clearly and
convincingly proven [that] W.W. continued to be a sexually violent predator in
need of civil commitment in a secure facility for control, care and treatment."
In re Civil Commitment of W.W. (W.W. II), No. A-5239-16 (Sept. 3, 2019) (slip
op. at 2). Therefore, W.W. remained committed at the STU.
W.W.'s next review hearing, which was held on October 10, 2019 before
Judge Philip M. Freedman, is the subject of the present appeal. The State relied
upon the testimony of a psychiatrist and a psychologist. Defendant testified on
his own behalf but did not present any expert witnesses.
Emily A. Urbina, M.D. was accepted by the court as an expert in
psychiatry. Dr. Urbina diagnosed W.W. with other Specified Paraphilic
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Disorder, Coercive, Antisocial Personality Disorder, and multiple substance
abuse disorders. Dr. Urbina opined that none of these diagnoses would
spontaneously remit and, therefore, W.W. required continued treatment to learn
to control his sexually violent tendencies.
According to Dr. Urbina, W.W.'s Static-99R results placed W.W. in the
"well above average" risk group. Dr. Urbina also noted that W.W.'s dynamic
risk factors, which included "sexual deviancy, difficulty with self-regulation,
poor cognitive problem[-solving] skills, [and] limited cooperation with
supervision," demonstrated his individual high risk to reoffend.
Christine Zavalis, Psy.D. was accepted as an expert in psychology by the
court and was a member of the Treatment Progress Review Committee (the
Committee) that evaluated W.W.'s progress in treatment. The Committee
recommended that W.W. needed continued treatment, but W.W. was resistant to
it, which highlighted his antisociality and his ongoing high risk to reoffend.
W.W. testified that there was a procedural error made at his initial
screening for the SVPA in 2013. However, Judge Freedman pointed out that
this issue was moot in light of the fact that the Appellate Division affirmed the
commitment order in W.W. I.
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Following the hearing, Judge Freedman rendered a comprehensive oral
opinion and concluded that W.W. should remain committed at the STU. In so
ruling, the judge found by clear and convincing evidence that W.W. had been
convicted of a sexually violent offense and "suffer[ed] from . . . mental
abnormalities and a personality disorder that separately, and certainly in
conjunction with each other, predispose [W.W.] to engage in acts of sexual
violence, as his record and his admissions in evaluations and in treatment clearly
indicate." The judge further found
that if [W.W.] 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's
at the beginning stages of treatment despite having been
[at the STU] for a number of years. He's fixated on
some legal issue which I don't see exists, and he is
really not engaging in treatment, unfortunately, based
on my review of the treatment notes.
This appeal followed.
On appeal, W.W. argues that "the State presented insufficient evidence to
support a finding that W.W. required commitment to the [STU]." We disagree.
The governing law is clear. An involuntary civil commitment under the
SVPA can follow an offender's service of a custodial sentence, or other criminal
disposition, when he or she "suffers from a mental abnormality or personality
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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.
The mental abnormality or personality disorder "must affect an individual's
ability to control his or her sexually harmful conduct." In re Commitment of
W.Z., 173 N.J. 109, 127 (2002). A showing of an impaired ability to control
sexually dangerous behavior will suffice to prove a mental abnormality. Id. at
129; In re Civil Commitment of R.F., 217 N.J. 152, 173-74 (2014).
At a commitment hearing, the State has the burden of proving under the
SVPA that the offender poses a threat:
to the health and safety of others because of the
likelihood of his or her engaging in sexually violent
acts . . . . [T]he State must prove that threat 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., 173 N.J. at 132.]
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The court must address the offender's "present serious difficulty with con trol
over dangerous sexual behavior." Id. at 132-33 (emphasis omitted). To commit
the individual to the STU, the State must establish, by clear and convincing
evidence, that it is highly likely that the individual will reoffend. Id. at 133-34;
see also R.F., 217 N.J. at 173.
In this appeal, our review of Judge Freedman's decision 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)). On appeal,
we will not disturb the SVPA judge's decision unless there was a clear abuse of
discretion, and "it is our responsibility to canvass the record, inclusive of the
expert testimony, to determine whether the findings made by the . . . judge were
clearly erroneous." In re Civil Commitment of W.X.C., 407 N.J. Super. 619,
630 (App. Div. 2009), aff’d, 204 N.J. 179 (2010).
Applying these well-established standards, we affirm the order for W.W.'s
continued commitment at the STU, substantially for the reasons detailed in
Judge Freedman's oral opinion. The judge was entitled to accept Dr. Urbina's
uncontradicted expert assessment as to W.W.'s risk of re-offense. W.W. has not
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cooperated with the treatment required to address the disorders that led him to
commit the sexually violent offenses that required his commitment under the
SVPA.
In so ruling, we reject W.W.'s contention that because he has not
committed a sexually violent offense since February 2000, he is no longer in
need of commitment. W.W.'s argument ignores the fact that he has been
incarcerated or committed to the STU since his conviction for that offense.
Therefore, this gap in time does not signify that W.W. has the ability to control
his sexual urges if he were released from his controlled environment.
Finally, W.W. argues that Judge Freedman erred by finding that he preyed
upon developmentally disabled victims who were weaker than him. W.W.
claims that he, himself, scored below average on two I.Q. tests and, therefore,
was also developmentally disabled. This contention lacks merit. As Dr. Urbina
testified, W.W. exhibited no functional or cognitive limitations, which indicated
that he was simply uncooperative with the earlier I.Q. testing. Thus, there is
ample credible evidence in the record to support Judge Freedman's finding.
Affirmed.
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