Opinion
DOCKET NO. A-2412-15T2
06-08-2016
IN THE MATTER OF THE CIVIL COMMITMENT OF H.E. SVP 518-08.
Joan Van Pelt, Designated Counsel, argued the cause for appellant H.E. (Joseph E. Krakora, Public Defender, attorney). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Gooden Brown. On appeal from the 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). Amy Beth Cohn, Deputy Attorney General, argued the cause for respondent State of New Jersey (Robert Lougy, Acting Attorney General, attorney). PER CURIAM
H.E. appeals from a June 5, 2015 judgment continuing his involuntary commitment to the Special Treatment Unit (STU) pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues that the State's expert psychiatrist rendered a flawed diagnosis and that the trial court gave undue weight to the opinions of the State's witnesses. He further contends that the trial court engaged in a faulty analysis and improperly concluded that the State proved by clear and convincing evidence that he required continued involuntary commitment as a sexually violent predator. We reject H.E.'s contentions and affirm substantially for the reasons stated in Judge Philip M. Freedman's comprehensive oral decision of June 5, 2015.
We previously recounted H.E.'s criminal history in our prior unpublished opinion affirming his initial commitment under the SVPA and we incorporate those background facts by reference here. See In the Matter of the Civil Commitment of H.E., No. A-5298-08 (App. Div. Feb. 8, 2012) (slip op. at 1) ("H.E. I"). In that prior opinion, we described H.E.'s predicate convictions arising out of his guilty pleas in 1999 to aggravated sexual assault upon a fifteen-year-old girl, N.J.S.A. 2C:14-2(a), and aggravated criminal sexual contact with a twenty-four-year-old woman, N.J.S.A. 2C:14-3(a). H.E. was sentenced in April 2000 to a twelve-year custodial term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. After he was examined at the State's request by mental health experts near the completion of his criminal sentence, the trial court approved his civil commitment to the STU in June 2009. H.E. I, supra, No. A-5298-08, slip op. at 5-6.
In a November 12, 2013 order, which followed a periodic review hearing, the trial court continued H.E.'s commitment to the STU. In an unpublished opinion, we affirmed Judge Freedman's finding that "the State had proved by 'clear and convincing evidence that [H.E.] does in fact suffer from mental abnormalities in the form of substance abuse diagnoses, as well as an antisocial personality disorder, and that, as his record shows, they predispose him to engage in acts of sexual violence.'" See In the Matter of the Civil Commitment of H.E., No. A-2826-13 (App. Div. Dec. 2, 2014) (slip op. at 11-12) ("H.E. II").
The most recent review, which is the subject of this appeal, was conducted before Judge Freedman on May 29, 2015. The State relied on the expert testimony of Indra Cidambi, a psychiatrist, and Zachary Yeoman, Psy.D., a psychologist. Timothy P. Foley, Ph.D., an expert psychologist, testified on behalf of H.E.
Dr. Cidambi interviewed H.E. on May 18, 2015, and also reviewed his STU records and prior psychiatric and psychological evaluations. Besides H.E.'s two 1996 adult convictions, Dr. Cidambi noted that he was also adjudicated delinquent in 1991 at age sixteen for a sexual assault and was sentenced to three years' probation. She attached significance to the fact that, during the interview, H.E. continued to deny his involvement in two of the sexual offenses.
Dr. Cidambi also specifically pointed to H.E.'s extensive substance abuse history, noting that he had been drinking since age fourteen and taking drugs since age sixteen. Importantly, H.E. had admitted that he smoked marijuana during one of his sexual assaults, "[a]nd also he has mentioned in the past that there is a history of violence when he gets drunk." Dr. Cidambi opined that H.E.'s risk of reoffending would increase should he be under the influence of alcohol or marijuana.
Dr. Cidambi diagnosed H.E. with antisocial personality disorder and alcohol and cannabis use disorder. Also, for the first time, she rendered a provisional diagnosis of unspecified paraphilic disorder which, as the court noted, had never been diagnosed by other mental health professionals that had evaluated H.E. in the past. According to Dr. Cidambi, even without the provisional diagnosis of paraphilia, the combination of personality disorder and substance abuse disorder affect H.E. emotionally, cognitively, and volitionally and render him highly likely to reoffend sexually. Significantly, these conditions do not "spontaneously remit." Additionally, H.E. scored a six on the Static-99R, which placed him at a "high" risk for sexual recidivism.
Although H.E. had progressed well in his treatment, Dr. Cidambi testified that he required additional sex offender treatment and also acceptance into the therapeutic community (T.C.), for which he had thus far unsuccessfully applied. Without treatment, H.E. is not able to mitigate the risk for reoffense and H.E.'s treatment so far had not been sufficient to mitigate that risk. Dr. Cidambi concluded that H.E. was highly likely to reoffend if his commitment was not continued.
Dr. Yeoman, a member of the STU's Treatment Progress Review Committee (TPRC), met with H.E. and consulted with H.E.'s treatment team in conducting his annual review. He related that the treatment team had not recommended H.E. for the T.C. because "[t]hey felt he is still in the early stages of sex offender specific treatment, and . . . needs to improve his interpersonal style." The treatment team also felt that H.E. was not ready for discharge planning, and recommended that he remain in Phase Three A, his current level of treatment.
Dr. Yeoman diagnosed H.E. with antisocial personality disorder, severe alcohol use disorder, and moderate cannabis use disorder. He also scored H.E. a six on the Static-99R. In accord with Dr. Cidambi, Dr. Yeoman opined that H.E.'s disorders predisposed him to sexually offend and required further treatment, and that H.E. was "highly likely to sexually reoffend" if released into a less restrictive environment.
Dr. Foley also diagnosed H.E. with antisocial personality disorder, and noted H.E.'s past serious drug and alcohol problems. However, he did not diagnose a paraphilic disorder, which he interpreted as indicating "a lack of sexual compulsion." Dr. Foley concluded that H.E. was "less than highly likely" to reoffend if released back into the community with appropriate conditions, including substance abuse treatment and sex offender treatment.
In a detailed oral opinion spanning fifty-seven transcript pages, Judge Freedman concluded that H.E. should remain committed to the STU. The judge began by carefully reviewing the testimony of the three experts and H.E.'s extensive treatment notes. He found insufficient evidence in the record to support Dr. Cidambi's diagnosis of an unspecified paraphilic disorder. He also "agree[d] with Dr. Yeoman that this is a closer case than a lot of the cases that are presented here, because [H.E.] doesn't have the paraphilia." Notwithstanding, relying upon In re Commitment of W.Z., 173 N.J. 109 (2002), the judge noted "that there is no requirement that there be a . . . paraphilic diagnosis or a diagnosis of compulsive sex disorder in order to justify a civil commitment."
In the end, Judge Freedman determined "Dr. Foley's view that [H.E. is] capable for conditional discharge is not supported by the record." He found it clear, as did "the evaluators and Dr. Foley[,] that [H.E.] certainly does need more treatment." The judge elaborated:
The only difference between Dr. Foley's view and the State's doctors['] view is that he thinks [H.E.] can go out on a conditional discharge to continue his treatment, sex offender specific treatment and for substance abuse treatment.
But in my view, I [] don't believe from this record and the opinion of the State's experts, which I think is supported by the record, that [H.E.] has progressed far enough in treatment to consider that conditional discharge. I think his actual conduct in the real world when he was out there shows that he doesn't care much for supervision.
He's violated on numerous occasions. He continued to offend after being sanctioned, and I don't believe that I could possibl[y] find that he would be highly likely to comply at this stage.
I'm satisfied to find based on the testimony of the State's experts, which I credit, that their opinions are, in fact, supported by the record, those parts of their opinions that I rely on.On June 5, 2015, the court signed a memorializing order continuing H.E.'s commitment in the STU. This appeal followed.
. . . .
So, I'm satisfied to find by clear and convincing evidence that [H.E.] does suffer from a personality disorder that affects him emotionally and volitionally and, in his case, predisposes him to engage in acts of sexual violence, as his record shows.
And that he would [] have serious difficulty controlling his sexually violent behavior if he's released and would be highly likely within the reasonably foreseeable future to engage in acts of sexual violence.
We begin with a review of basic principles. An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "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. "[T]he State must prove that 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." W.Z., supra, 173 N.J. at 132. The court must address "his or her 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 132-33; 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.
Our Supreme Court has recently reaffirmed that an appellate court's scope of review of a judgment for commitment under the SVPA "is extremely narrow." R.F., supra, 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We must "give deference to 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)). Accordingly, 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.
Applying this limited scope of review here, we affirm the trial court's order of continued commitment. The court's conclusions are amply supported by the evidence and are fully consistent with the law governing SVPA matters. Judge Freedman carefully scrutinized the expert testimony and the documentary evidence, and soundly explained his reasons for accepting or rejecting these proofs. It is clear that Judge Freedman ultimately did not accept Dr. Cidambi's provisional diagnosis of paraphilia, and therefore he did not mistakenly rely upon it in continuing H.E.'s commitment. Even without a paraphilia diagnosis, Dr. Cidambi unambiguously testified that the combination of personality disorder and substance abuse disorder renders H.E. highly likely to reoffend sexually. In any event, it is well settled that the SVPA does not require a diagnosis of paraphilia but merely a "mental abnormality or personality disorder." See W.Z., supra, 173 N.J. at 116 (rejecting W.Z.'s argument that the SVPA did not apply to him because he was not diagnosed with an Axis I sexual compulsion or paraphilia).
We also reject H.E.'s argument that Judge Freedman erred in accepting the opinions of the State's experts over the conflicting opinion of Dr. Foley. With respect to the opinions of qualified experts, a trial court is free to accept or reject the testimony of either side's expert, in full or in part. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). See also Model Jury Charge (Civil) 1.13 and 1.13(B).
We conclude that Judge Freedman's decision to continue H.E.'s commitment is clearly and convincingly supported by ample credible evidence in the record and the record does not reveal a clear mistake. The judge was clearly not misled in any way by Dr. Cidambi's provisional diagnosis of unspecified paraphilic disorder, and gave no weight to it. Accordingly, we affirm the order of continued commitment, substantially for the reasons articulated at length by Judge Freedman in his June 5, 2015 oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
The Static-99R is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses. See Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003). [We have] 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."
[In re Civil Commitment of R.F., 217 N.J. 152, 164 n. 9 (2014) (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)).]