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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–1032–12T2

    Decided: March 26, 2014

Before Judges Grall and Accurso.

E.S. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4–27.24 to –27.38. He appeals from an October 12, 2012 order of the Law Division continuing his commitment after an annual review required by N.J.S.A. 30:4–27.35. We affirm.

E.S. is seventy years old and, although he has been committed to the STU since 2001, he has refused treatment since 2004.   He was charged with his first sexual offense when he was twenty-seven.   He committed his predicate offense at age fifty.

In 1970, when he was twenty-seven, E.S. was arrested for impairing the morals of a minor and lewdness after he got into bed with a neighbor's son.   The boy was seven or eight years old.   He was convicted of impairing the morals of a child and sentenced to three years probation, conditioned on treatment at Mount Carmel Guild.

In 1985, E.S. was charged with sexual assault, four counts of endangering the welfare of a child, and one count of criminal sexual contact stemming from an FBI child pornography investigation.   E.S.'s father, who adopted E.S. when E.S. was thirty-three, was the actual target of the investigation, but E.S. was implicated when the FBI located children depicted in the materials.   E.S. pled guilty to second-degree endangering the welfare of a child and was sentenced to five years imprisonment.

E.S. committed his predicate offense in 1993 when he approached a fifteen-year-old boy who was riding his bike in a park, and invited the boy to his house.   The boy went with E.S. into E.S.'s basement to watch a video, where E.S. forced him to perform oral sex.   He was convicted by a jury of one count of sexual assault, N.J.S.A. 2C:14–2(c)(5), two counts of criminal sexual contact, N.J.S.A. 2C:14–3(b), and one count of endangering the welfare of a child, N.J.S.A. 2C:24–4(a).   He was sentenced to nine years, with a four year period of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center (ADTC).   E.S. refused to participate in sex offender specific treatment at ADTC and was transferred after four years to serve the remainder of his sentence at Northern State Prison.

Since his initial commitment, E.S. has been recommitted to the STU at each annual review hearing.   We have reviewed and affirmed several such determinations, most recently in 2012.  In re Civil Commitment of E.S., No. A–1404–11 (App. Div. June 14, 2012).

The review hearing at issue here took place on October 2 and 9, 2012.   Judge Mulvihill heard testimony from Dr. Indra Cidambi, a psychiatrist, and Dr. Christine E. Zavalis, a clinical psychologist and member of the STU's Treatment Progress Review Committee (TPRC).  Dr. Cidambi diagnosed E.S. with paraphilia not otherwise specified (NOS);  provisional pedophilia, sexually attracted to males, non-exclusive type;  and personality disorder NOS, with antisocial features.   She testified that E.S.'s Static–99R score, an actuarial measure of relative risk for sexual offense recidivism, was a 3, which places him in a low-moderate category.

Dr. Cidambi also testified that E.S. has received very little treatment despite his long period of institutionalization.   He refused all treatment at ADTC, and while he participated in treatment at the STU between his commitment in 2001 and 2005, he has since been in treatment refusal status.   She noted that E.S. denies his offenses and committed acts of sexual violence well past the age when statistics demonstrate a reduction in sex crimes by sex offenders, thus raising significant concern about his continuing to reoffend into old age.

According to Dr. Cidambi, E.S.'s sexual disorder is an urge that he cannot control and his denial of his crimes prevents him from being effectively monitored were he released into the community.   His paraphilia and personality disorder will not spontaneously remit, and the combination of disorders increases the likelihood of acting on his urges in a sexually violent manner.   Dr. Cidambi testified that E.S. remains highly likely to reoffend if not committed to the STU for continued treatment despite his age and compromised health condition.

Dr. Zavalis diagnosed E.S. with paraphilia NOS, (hebephilia), provisionally, pedophilia, sexually attracted to males, nonexclusive type;  and a personality disorder NOS, with antisocial features;  and provisionally, borderline intellectual functioning.   Dr. Zavalis confirmed that E.S. is a treatment refuser.   Dr. Zavalis also scored E.S. as a 3 on the Static–99R, which indicates a low to moderate risk, but stated that E.S. has not tried to change his habits, and thus remains highly likely to reoffend.

Dr. Maryanne DeSantis, a psychiatrist, testified on E.S.'s behalf.   Dr. DeSantis evaluated E.S. and prepared a report based on that evaluation.   Dr. DeSantis did not agree with Dr. Cidambi and Dr. Zavalis's diagnoses.   She diagnosed E.S. with sexual abuse of a minor, rejecting both paraphilia and pedophilia as appropriate diagnoses.   Although acknowledging on cross-examination that E.S. had “in his early years” been highly likely to sexually reoffend, Dr. DeSantis opined that he was no longer likely to do so because of his declining physical condition.

E.S. also addressed the court, and essentially stated that he wanted to leave the STU, because he did not want to have to hear about the other inmate's crimes.

Following the conclusion of testimony, Judge Mulvihill ordered E.S.'s continued commitment to the STU. The judge found the State's witnesses credible and forthright, and he accepted their diagnoses of E.S. and rejected Dr. DeSantis's diagnosis, as well as the inconsistency of her diagnosis with that of the several other experts who have evaluated E.S. over the years.   The judge found that E.S.'s conditions would not spontaneously remit and his failure to engage in treatment deprived him of the skills necessary to mitigate his risk.   The judge also rejected the notion that E.S.'s health condition made it impossible for him to reoffend.   Specifically, the judge found that

the State has proven, by clear and convincing evidence, that [E.S. has] been convicted of sexually violent offenses.  [There is c]lear and convincing evidence [that E.S.] continues to suffer from [a] mental abnormality and personality disorder that does not spontaneously remit[, and c]an only be mitigated by way of treatment.   He's had no real[ ] treatment effect.   Dr. DeSantis agrees with that.   And [there is] clear and convincing evidence that presently he's highly likely to engage in further acts of sexual violence if not confined in a secure facility for control, care and treatment.

This appeal followed.

A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement “in a secure facility for control, care and treatment.”  In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002);  N.J.S.A. 30:4–27.26. In order to secure an order for commitment under the SVPA, the State must prove the individual is a threat to the health and safety of others because of the likelihood of engaging in sexually violent acts.  W.Z., supra, 173 N.J. at 132.   The State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is “highly likely” the person “will not control his or her sexually violent behavior and will reoffend.”  Ibid. The court must address the person's “present serious difficulty with control over dangerous sexual behavior,” and the State must establish “that it is highly likely that” the individual will reoffend “by clear and convincing evidence.”  Id. at 132–34;  see also In re Civil Commitment of J.H.M., 367 N.J.Super. 599, 610–11 (App.Div.2003), certif. denied, 179 N.J. 312 (2004).

Once an individual has been committed under the SVPA, a court must conduct an annual review hearing to determine whether the individual will be released or remain in treatment.  N.J.S.A. 30:4–27.35. The burden remains upon the State to prove by clear and convincing evidence that the individual continues to be a sexually violent predator, as defined in the SVPA and interpreted in W.Z., supra, 173 N.J. at 126–32.  “[A]n individual should be released when a court is convinced that he or she will not have serious difficulty controlling sexually violent behavior and will be highly likely to comply with [a] plan for safe reintegration into the community.”  Id. at 130.

The scope of appellate review of a judgment for commitment under the SVPA is “extremely narrow.”  In re Commitment of J.P., 339 N.J.Super. 443, 459 (App.Div.2001).   The trial court's decision is to be given the “ ‘utmost deference’ and modified only where the record reveals a clear abuse of discretion.”  Ibid. (quoting State v. Fields, 77 N.J. 282, 311 (1978));  see also In re Civil Commitment of V.A., 357 N.J.Super. 55, 63 (App.Div.), certif. denied, 177 N.J. 490 (2003).  “The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower court['s] findings were clearly erroneous.”  In re D.C., 146 N.J. 31, 58–59 (1996).

Applying those standards here, we are satisfied from our review of the record that the judge's findings are amply supported by substantial credible evidence.  State v. Locurto, 157 N.J. 463, 470–71 (1999).   We affirm substantially for the reasons stated by Judge Mulvihill in his oral opinion of October 9, 2012.



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