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                            APPROVAL OF THE APPELLATE DIVISION
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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-5240-16T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF A.Y.,
SVP-545-09.
____________________________

                Submitted January 15, 2019 – Decided February 13, 2019

                Before Judges Geiger and Firko.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Docket No. SVP-545-09.

                Joseph E. Krakora, Public Defender, attorney for
                appellant A.Y. (Susan Remis Silver, Assistant Deputy
                Public Defender, of counsel and on the brief).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent State of New Jersey (Melissa H. Raksa,
                Assistant Attorney General, of counsel; Victoria R. Ply,
                Deputy Attorney General, on the brief).

PER CURIAM

       Appellant A.Y. appeals from a Law Division judgment involuntarily

civilly committing him to the Special Treatment Unit (STU) as a sexually violent

predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-
27.24 to -27.38. After reviewing the record in light of the contentions advanced

on appeal, we affirm.

      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; see also N.J.S.A. 30:4-27.25.          To civilly commit an

individual as a sexually violent predator, the State must establish three elements

by clear and convincing evidence:

            (1) that the individual has been convicted of a sexually
            violent offense, [N.J.S.A. 30:4-27.26]; (2) that he
            suffers from a mental abnormality or personality
            disorder, ibid.; and (3) that as a result of his psychiatric
            abnormality or disorder, "it is highly likely that the
            individual will not control his or her sexually violent
            behavior and will reoffend," In re Commitment of
            W.Z., 173 N.J. 109, 130 (2002). Although the first two
            elements derive directly from the statute, to comport
            with substantive due process concerns, [the] Court
            interpreted the third statutory element as requiring the
            State to show that a person is "highly likely," not just
            "likely," to sexually reoffend. Ibid.

            [In re Civil Commitment of R.F., 217 N.J. 152, 173
            (2014).]

      In order to be considered a sexually violent predator, an individual must

have committed a sexually violent offense. N.J.S.A. 30:4-27.26. Sexual assault

                                                                           A-5240-16T5
                                         2
is considered a sexually violent offense. Ibid. With this legal framework in

mind, we will now consider the facts that led to A.Y.'s commitment under the

SVPA.

       We derive the facts from the trial record. A.Y. is now thirty-nine years

old.   In February 2006, he pleaded guilty to second-degree sexual assault,

N.J.S.A. 2C:14-2(c). His conviction was predicated on the following facts. On

April 11, 2005, A.Y. went to the house of his former girlfriend, N.B., who was

home with her two-year-old son. A.Y. wanted to stay the night and said he

would leave at 5:00 a.m. the next morning. N.B. allowed him to stay, and he

slept on the couch. When the alarm went off the next morning, N.B. told A.Y.

it was time to leave. A.Y. began touching her, ordered her to remove her clothes,

and refused to allow her to leave the apartment. A.Y. demanded she hug and

kiss him and became violent when she resisted, stating he intended to make her

suffer the way she made him suffer.

       When N.B. picked up her son, A.Y. told her to put him down and

threatened to break the child's neck if she did not do so. A.Y. forced N.B.'s legs

open and performed oral sex on her. He then forced N.B. to perform fellatio on

him, threatening to harm her if she refused and to break her neck if she bit him.

He then vaginally and anally penetrated her despite her complaints of pain and


                                                                          A-5240-16T5
                                        3
demanded she suck the fecal matter off his penis. While her son cried in another

room, A.Y. anally penetrated N.B. a second time. A.Y. then told N.B. to stand

at the foot of her son's bed and vaginally penetrated her from behind. A.Y. told

her he was going to do this to her for the next forty-eight hours and that he would

hurt her son if she left or answered the door. When A.Y. left to buy cigarettes,

N.B. ran upstairs to a friend's apartment and called the police.

      Prior to sentencing, A.Y. underwent a psychological evaluation at the

Adult Diagnostic Treatment Center in Avenel to determine his eligibility for

sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A.

2C:47-1 to -10. In her report, psychologist Donna LoBiondo, Ph.D., stated

A.Y.'s responses to the sexuality questionnaire included: "Something I enjoy

about being a male is . . . my dominance over God's creation" and, "[t]he hard

thing about being a male is . . . the ultimate responsibility of being the dominant

member."

      Dr. LoBiondo described A.Y.'s demeanor as "arrogant and detached." He

reported being diagnosed with Bipolar Disorder with posttraumatic stress and

depression. A.Y. admitted he could be overly aggressive when upset, and that

there is "no limit" to his aggression when properly provoked. He stated, "really




                                                                           A-5240-16T5
                                        4
most women are prostitutes." A.Y. denied sexually assaulting N.B., claiming

he "didn't do anything" and that the sex "was consensual."

      Dr. LoBiondo opined A.Y.'s "[o]verall clinical impression is of a

psychopathic and sadistic individual who engages in aggression for his own

gratification as well as the humiliation of those he perceives as vulnerable."

Despite these findings, she concluded there was "insufficient evidence that

[A.Y.'s] criminal behavior qualifies as repetitive and compulsive under the

statute. It is more likely that antisocial, sadistic and narcissistic motivations

drove his criminal sexual behavior." He was found not eligible for sentencing

under the purview of the Sex Offender Act.

      A.Y. was sentenced to a five-year prison term, subject to an eighty-five-

percent period of parole ineligibility under the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, community supervision for life, N.J.S.A. 2C:43-6.4, and the

requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23.

      On October 15, 2006, while being detained on the sexual assault charge,

A.Y. forcibly sodomized a fellow inmate, penetrating him repeatedly.           He

pleaded guilty to an accusation of third-degree criminal restraint in

circumstances exposing the victim to risk of serious bodily injury, N.J.S.A.

2C:13-2(a), and was sentenced to a concurrent three-year prison term.


                                                                         A-5240-16T5
                                       5
       A.Y. did not file a direct appeal from either conviction or sentence. His

subsequent petition for post-conviction relief (PCR) from the sexual assault

conviction was denied. In an unpublished opinion, we affirmed the denial of

PCR.

       In 2009, a psychological evaluation and risk assessment of A.Y. was

performed by Alicia Caputo, Ph.D., a psychologist. Her report states A.Y.

reported beginning counseling at age four or five after witnessing the murder of

his brother. He was prescribed medication at age eight for hyperactivity and

because he "started exhibiting signs of violence toward other kids." A.Y. was

in and out of psychiatric treatment as a teenager and was prescribed Paxil,

Risperdal, and other medications but refused to take them.

       Prior to his convictions in New Jersey, A.Y. was convicted of arson,

cruelty to animals, theft by unlawful taking, and simple assault in Georgia. As

to the arson and cruelty to animals convictions, A.Y. reported to Dr. Caputo that

he had moved in with his girlfriend and invested much time and money into the

relationship, including buying all their furniture. The relationship deteriorated

and during a physical altercation he had "probably choked her." His girlfriend

called the police and he was removed from the residence. A.Y. came up with

the idea to go over to her residence "and burn it all up" because she had all the


                                                                         A-5240-16T5
                                       6
furniture and would not give it back. He set his girlfriend's residence on fire

while she was not home. Her dog and cat perished in the fire.

      A.Y. was treated for Posttraumatic Stress Disorder (PTSD) and Bipolar

Disorder and was prescribed Geodon, Vistaril, and Zoloft while serving a prison

term in Georgia from 2001 to 2004. While in prison he cut his wrist several

times, stating he was depressed but denied true suicidal intent.

      Upon his release from prison, A.Y. returned to New Jersey and briefly

participated in outpatient treatment and was prescribed Paxil and Risperdal until

his sexual assault arrest. While incarcerated in jail, A.Y. participated in mental

health treatment and was prescribed Benadryl, Depakote, and Risperdal but

stopped taking these medications in May 2006.

      A.Y. entered the State prison system in April 2007. After reporting

symptoms including sleep disturbance, anxiety, depression, irritability, and

mood swings, he was prescribed Depakote, Risperdal, and Vistaril but was noted

as being erratically compliant with medication. At one point he verbalized

suicidal ideation. In April 2009, he returned to outpatient treatment, and was

diagnosed with Mood Disorder Not Otherwise Specified (NOS) and Personality

Disorder NOS. He was prescribed Benadryl, Depakote, and Zoloft.




                                                                          A-5240-16T5
                                        7
      Dr.   Caputo's   report    states   A.Y.'s   "presentation   throughout   his

incarceration has been described as angry, antisocial, and sarcastic."           He

repeatedly disclosed thoughts of violence, stabbing people, or otherwise

assaulting them if his demands were not met. "He also described a constant state

of underlying anger and a view that relationships with people were 'only to get

what I want from them.'"        During her interview of A.Y., he described the

criminal restraint offense, admitting he anally penetrated his cell mate with a

broomstick because his cell mate was a child molester. When asked about the

appropriateness of his behavior, he responded, "[t]hat's what he should get."

This version conflicts with A.Y.'s contention that he engaged in consensual sex

with his cell mate.

      Dr. Caputo noted A.Y. underwent a parole evaluation by David Gomberg,

Ph.D., in January 2009, which included the use of the Static-991 and MnSOST-

R2 actuarial instruments to assess his future sex offender risk. Dr. Gomberg's


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." R.F., 217 N.J. at 164 n.9 (citing Andrew Harris et al., Static-99
Coding Rules Revised-2003 5 (2003)).
2
   "The Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) is
another actuarially derived and rigorously validated risk assessment instrument
developed to aid clinicians and criminal justice officials in assessing risk for


                                                                           A-5240-16T5
                                          8
scoring of the MnSOST-R and Static-99 placed A.Y. in the high risk category

on both instruments. Dr. Gomberg recommended A.Y. be referred for civil

commitment as a sexually violent predator.

      Dr. Caputo also administered the MnSOST-R and Static-99 actuarial

instruments. She scored A.Y. a +10 on the MnSOST-R, placing him in the high

risk category for sexual reoffending, and a 5 on the Static-99, placing him in the

moderate-high risk category for sexual reoffending.

      Dr. Caputo concluded both of A.Y.'s offenses "involved significant

elements of violence." His sexual assault of N.B. "involved elements of sadism

and humiliation," as well as using threats of violence against her two-year-old

son. "More generally, [A.Y.] exhibited a significant tendency to denigrate and

objectify women."     With regard to his criminal restraint conviction, A.Y.

"exhibited no remorse and framed his sexual assault of the victim as 'just

desserts' for the victim's alleged pedophilia." Dr. Caputo stated A.Y. "exhibited

no empathy for either of his sexual victims." She found A.Y. appropriate for

referral for SVPA commitment upon his release from prison.




future sexual dangerousness in convicted sex offenders." In re J.P., 339 N.J.
Super. 443, 451 (App. Div. 2001).


                                                                          A-5240-16T5
                                        9
      Dr. Caputo concluded A.Y. "has exhibited a significant penchant for

violence" and "[h]is violent tendencies are the results of significant antisocial

traits." She opined "[a]lthough it is highly likely that [A.Y.] will engage in

violent behavior in the future, this increased risk is not considered a functio n of

psychopathology outside the realm of severe antisocial characterological

disorder."

      In October 2009, the State filed a petition seeking A.Y.'s involuntary

commitment under the SVPA. The clinical certificates of psychiatrists Marina

Moshkovich, M.D., and Anasya Salem, M.D., identifying A.Y. as a sexually

violent predator, were submitted in support of the application.          A.Y. was

examined by Dr. Moshkovich on October 26, 2009, and by Dr. Salem the next

day. Both of their clinical certificates stated A.Y. scored a 9 on the Static-99R

and a 12 on the MnSOST-R risk assessment instruments, placing him at high

risk for sexual reoffending.     They each diagnosed A.Y. as suffering from

Polysubstance Dependence in remission due to controlled environment, Mood

Disorder NOS, and Antisocial Personality Disorder (ASPD), and opined A.Y.

"suffers from a mental abnormality or personality disorder that makes him likely

to engage in acts of sexual violence if not confined in a secure facility for




                                                                            A-5240-16T5
                                        10
control, care, and treatment." A.Y. was temporarily committed to the STU

pending an initial hearing.

       For several years, A.Y. waived his initial commitment hearing while he

unsuccessfully pursued PCR in State court, and a writ of habeas corpus in federal

court. A.Y. engaged in treatment at the STU during his temporary commitment

but spent much of that period in the Modified Activities Program (MAP) 3 due

to violating institutional rules.

       The hearing on the State's petition was held on June 21, 2017. The State

presented the testimony of Dean M. De Crisce, M.D., an expert psychiatrist, and

Laura Carmignani, Ph.D., an expert psychologist.       Appellant presented the

testimony of Barry Zakireh, Ph.D., an expert psychologist. A.Y. elected not to

testify.

       Dr. De Crisce performed a forensic psychiatric evaluation and issued a

report in 2017. As part of the evaluation, Dr. De Crisce utilized the Static-99R

and Stable 2007 actuarial instruments. A.Y. scored a 9 on the Static-99R,

placing him at a "well above average" risk to sexually recidivate. He scored



3
   The MAP, "a component of the clinical treatment program at the STU that
focuses on stabilizing disruptive or dangerous behaviors," is a behavior-related
treatment modality. M.X.L. v. N.J. Dep't of Human Servs./N.J. Dep't of Corr.,
379 N.J. Super. 37, 45 (App. Div. 2005).
                                                                         A-5240-16T5
                                      11
A.Y. at 17 on the Stable 2007, "placing him within a group of individuals with

similar dynamic factors that require a high level of dynamic supervision needs."

Dr. De Crisce noted A.Y. scored a 28 on the PCL-R in 2009, "which

approximates the threshold of psychopathy." He also noted A.Y. "incurred a

number of institutional infractions, had not participated in programming, [and]

voiced multiple violent thoughts and denigrating thoughts about women." He

further noted A.Y. tested positive for opiates and cannabis in 2012, and was

placed on MAP in 2013 "for making threats towards medical personnel and

spitting at them." He also incurred MAP placements in 2015 for multiple

infractions including threatening behavior and possession of marijuana and

alcohol.

      Dr. De Crisce concluded A.Y. suffered from ASPD as evidenced by his

repeated behaviors.   Noting he "has been described as an angry, irritable,

aggressive and controlling individual," A.Y. stated he liked to take risks, and

described himself as the type of person who "wants what he wants" and will "go

all in." A.Y. "expressed a core belief that violence was necessary to get results

and to exert dominance."      A.Y. stated: "Once I make my mind up about

something man I'm like a bull." Dr. De Crisce considered A.Y.'s rape behaviors




                                                                         A-5240-16T5
                                      12
as a function of his ASPD, viewing "these rapes as a function of revenge, rage,

antisocial entitlement, and dysfunctional thoughts about women and others."

      Dr. De Crisce opined A.Y. also suffered from various substance abuse

disorders and Bipolar II Disorder. He noted substance use is a known risk factor

for recidivism in individuals with a history of sexual offenses.

      Dr. De Crisce found A.Y. has a number of factors that contribute to a high

risk of sexual reoffense. He concluded A.Y. still requires therapeutic work to

address his risk taking behaviors despite making positive strides in his treatment

in the last year.

      Dr. De Crisce opined A.Y. "suffers from a mental abnormality and

personality disorder that affects his cognitive, volitional, or emotional capacity

such that he is highly likely to sexually reoffend if not kept under the care,

control and treatment of a secure facility such as the STU." His testimony

largely expressed the same findings and conclusions.

      Dr. Carmignani prepared a comprehensive annual review report for the

Treatment Progress Review Committee (TPRC) in December 2016. The report

reviewed A.Y.'s sexual offense history, nonsexual offense history, course of

treatment at the STU, institutional infractions, clinical interview, psychological

testing   results,   diagnoses,   and   clinical   formulation     and   treatment


                                                                           A-5240-16T5
                                        13
recommendations.     The report states A.Y. is diagnosed with ASPD (with

borderline features), Other Specified Paraphilic Disorder (nonconsent)

(provisional), Sexual Sadism Disorder (provisional), Cannabis Use Disorder (in

a controlled environment), Phencyclidine (PCP) Use Disorder (in a controlled

environment), Opioid Use Disorder (in a controlled environment), Alcohol Use

Disorder (in a controlled environment), Bipolar Disorder (by history), and PTSD

(by history).

      The report states A.Y.:

            demonstrates an enduring, pervasive pattern of
            disregard for and violation of the rights of others that
            began in adolescence or early adulthood, which is
            characterized by a failure to conform to social norms
            with respect to lawful behaviors, deceitfulness,
            impulsivity, irritability and aggressiveness, reckless
            disregard for safety of self or others, irresponsibility,
            and lack of remorse.

      Dr. Carmignani opined A.Y. "is highly likely to sexually reoffend at this

time if not confined to the STU." Her opinion was "based on his high actuarial

estimate, antisocial and psychopathic personality structure, history of sexual

preoccupation, and history of violence within intimate relationships, as well as

his ongoing negative emotionality, impulsivity, poor judgment, and poor

problem solving skills." She also noted A.Y.'s extensive substance abuse. Dr.

Carmignani also noted A.Y.'s Static-99R and STABLE-2007 scores placed in

                                                                        A-5240-16T5
                                      14
the high risk range to sexually recidivate. The report recommended A.Y. remain

in Phase 2 of treatment. Her testimony largely expressed the same findings and

conclusions.

      Dr. Barry Zakireh performed a forensic psychosexual evaluation of A.Y.

in May 2017. His report states:

            the evidence overwhelmingly supports the presence of
            features or symptoms associated . . . with bipolar or
            severe mood disorder, substance abuse, and antisocial
            characteristics leading to general criminality,
            particularly evident in his late adolescence to early
            adulthood, and no evidence of any significant
            correlation with paraphilic urges or sexual dynamics.

      Dr. Zakireh diagnosed A.Y. with ASPD, Bipolar Disorder, and Substance

Abuse Disorders in a controlled environment (alcohol, cannabis, and opiate s).

Dr. Zakireh opined a person with ASPD:

            manifests a long-term maladaptive pattern of behavior
            involving disregard for and violations of the rights of
            others. The features of this disorder are expressed in
            [A.Y.'s] history (since adolescence) of repeatedly
            performing acts that are grounds for arrest; multiple
            rule violations or arrests for sexual and nonsexual
            offenses (criminal versatility); irritability; anger or
            aggression; impulsivity or poor impulse control
            (repeated criminal acts despite arrests, sanctions, or
            supervision); irresponsibility and/or failure to plan in a
            socially constructive or adaptive manner (e.g., criminal
            behavior leading or exacerbating interpersonal and
            social difficulties[)]; reckless disregard for the safety of
            self or others (placing a victim at significant risk of

                                                                           A-5240-16T5
                                       15
             harm or maladaptive outcome; sexual offending against
             a vulnerable female with presence of a child in the
             residence); and poor empathy. [A.Y.] has showed the
             above pattern occasionally in significant or extreme
             ways, and it has been expressed through sexual and
             nonsexual aggression on multiple occasions over a
             prolonged period.

      Dr. Zakireh found significant evidence of a confounding or corollary

mental condition of Bipolar Disorder, which had been treated with "an effective

mood stabilizing psychotropic."      He concluded the primary motivations or

pattern of offending appear to correlate primarily with an antisocial but not

paraphilic pathway to sexual offending.       He also noted ASPD "involves a

diminishing of the intensity or frequency of negative outcomes through aging,"

particularly in the fourth decade of life.

      Dr. Zakireh utilized the Static-2002R to assess actuarial risk of sex offense

recidivism, scoring A.Y. at 6, placing him in the above-average risk category.

"Beyond the predisposing element of [ASPD]," Dr. Zakireh found insufficient

evidence of a mental disorder that results in a serious difficulty controlling

harmful sexual behavior such that it is highly likely A.Y. will not control his

sexually violent behavior and will reoffend. He concluded A.Y. presents an

overall moderate level of risk to sexually reoffend, considering the static,

actuarial, and dynamic factors.


                                                                           A-5240-16T5
                                        16
      Dr. Zakireh testified the Static-2002R had "greater predictive accuracy"

than the Static-99R. He said A.Y.'s score of 6 correlated with only a nineteen

percent rate over a five-year period. Dr. Zakireh also administered the Static-

99 and scored A.Y. at 7. His testimony otherwise largely expressed the findings

and conclusions expressed in his report.

      Judge Philip M. Freedman rendered a comprehensive oral decision on

June 27, 2017, in which he reviewed the testimony, entire documentary record,

prior criminal record, prior evaluations, mental health treatment, history of

infractions, and controlling case law. The judge recounted A.Y.'s statements

during treatment in late 2016 that rejection by women took him to a place of

rage and retaliation against them.      The judge provided detailed findings

regarding the testimony and opinions of Drs. De Crisce and Carmignani, which

he credited, and the testimony of Dr. Zakireh, whose theory that A.Y. had

reduced his anti-sociality through medications for his Bipolar Disorder he

rejected, finding it had "no basis."

      Judge Freedman reviewed the records relied upon by the State's experts in

reaching their opinions, and found the records to be of the type relied upon by

experts in their field. The judge also found the records supported their opinions.

In contrast, Judge Freedman concluded A.Y. and his expert substantially


                                                                          A-5240-16T5
                                       17
overstated the effect of his use of medication for his Bipolar Disorder on his

likelihood to reoffend. While recognizing Abilify renders A.Y. capable of

engaging in treatment, Judge Freedman concluded the Abilify "hasn't in any

way, shape or form eliminated his need for treatment to deal with his [ASPD]

and his . . . problems."      He determined A.Y.'s antisocial behavior and

predisposition to engage in sexual offending were not caused by his Bipolar

Disorder. The judge found A.Y. "clearly needs continued treatment" despite the

improvement in his Bipolar Disorder through medication, agreeing with Dr.

DeCrisce's opinion that A.Y.'s Bipolar Disorder "is incidental to his presentation

and not the basis of it." The judge noted Dr. Zakireh acknowledged that Bipolar

Disorder does not predispose a bipolar individual to commit sexually violent

offenses. He further noted Dr. Zakireh conceded A.Y.'s Bipolar Disorder was

peripheral to his sexual offending, A.Y. was still predisposed to engage in acts

of sexual violence by his ASPD, and A.Y. would have far more maladaptive

behaviors if he did not take his medications.

      Judge Freedman concluded A.Y. had "not made that much treatment

progress," was still in Phase 2, still needed to develop relapse prevention by

completing relapse prevention 2 and 3, and still needed extensive substance




                                                                          A-5240-16T5
                                       18
abuse treatment. He viewed A.Y. as "far from being ready for a conditional

discharge."

      The judge found the State clearly and convincingly proved its case for

civil commitment. Based on the expert testimony of the State's witnesses, Judge

Freedman found by clear and convincing evidence that A.Y. suffers from a

mental abnormality in the form of substance abuse disorders and a personality

disorder involving antisocial traits, which "predisposes him to engage in acts of

sexual violence." The judge further found A.Y. "would have serious difficulty

controlling his sexually violent behavior in the community." He also found A.Y.

"would be highly likely to return to drug use, which would disinhibit him" and

make his anti-sociality "even worse." Judge Freedman concluded A.Y. would

not be highly likely to comply with conditions of a conditional discharge, noting

even A.Y.'s expert "could not testify to that."

      Judge Freedman determined A.Y. "continues to be a sexually violent

predator in need of civil commitment in a secure facility for control, care, and

treatment," who is "highly likely to engage in acts of sexual violence" for "the

foreseeable future." Judgment was entered committing A.Y. to the STU. This

appeal followed.

      A.Y. raises the following issues on appeal:


                                                                         A-5240-16T5
                                       19
POINT I
THE TRIAL JUDGE CLEARLY ERRED WHEN HE
ASSESSED A.Y.'S RISK OF REOFENDING
WITHOUT ADDRESSING THAT HE NOW HAS
VOLITIONAL CONTROL OVER HIS SEXUALLY
ASSAULTIVE   BEHAVIOR   THROUGH   HIS
SUCCESSFUL TREATMENT AT THE STU.

POINT II
A.Y.'S COMMITMENT IS IMPROPERLY BASED
ON STATE EXPERTS' INADMISSABLE NET
OPINION TESTIMONY.

A. Neither State Expert Could Provide Any Probability
Basis to Find A.Y. "Highly Likely" to Reoffend.

B. The Static-99 Risk Assessment Tool Demonstrated
that [A.Y.'s] Risk of Sexually Reoffending Was Below
50%.

C. The State Experts Could Not Point to Any
Methodology Or Objective Standards Used to Reach
Their Finding.

D. Both State Experts Ignored Base Rate Data that Was
Relevant to Determine [A..Y.'s] Risk of Reoffending.

E. The State Experts Failed to Correlate [A.Y.'s] PCL-
R Score with Finding He Was Highly Likely to
Reoffend.

F. The State Experts Failed to Correlate Any STABLE-
2007 Score with Finding [A.Y.] Highly Likely to
Reoffend.

G. Dr. Zakireh, A.Y.'s Expert, Was the Only Witness
Who Used An Empirically Validated Risk Assessment.


                                                         A-5240-16T5
                         20
We have considered these arguments and find they lack merit.

      Our "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 are generally '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)). "We 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)).

"Accordingly, 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). "So long as the trial court's

findings are supported by 'sufficient credible evidence present in the record,'

those findings should not be disturbed." Ibid. (quoting Johnson, 42 N.J. at 162).

      The State is, as a general matter, entitled to call experts on the subject of

commitment and, to the extent the information the experts relied upon is of a

type reasonably relied upon by experts in that field, the State can prove the

grounds for commitment without calling as a witness each person who provided

information upon which the expert relied. In re Civil Commitment of W.X.C.,


                                                                           A-5240-16T5
                                       21
407 N.J. Super. 619, 641 (App. Div. 2009), aff'd on other grounds, 204 N.J. 179

(2010); see also State v. Torres, 183 N.J. 554, 576 (2005); N.J.R.E. 703. Prior

expert opinions are admissible, not as substantive evidence, but as a basis for

the expert's opinion. In re Commitment of E.S.T., 371 N.J. Super. 562, 576

(App. Div. 2004).

      However, the trial judge conducting an initial hearing is "not required to

accept all or any part of" an expert's opinion. R.F., 217 N.J. at 174 (quoting

D.C., 146 N.J. at 61). That is because the ultimate determination is "'a legal

one, not a medical one, even though it is guided by medical expert testimony.'"

Ibid. (quoting D.C., 146 N.J. at 59). "The final decision whether a person

previously convicted of a sexually violent offense is highly likely to sexually

reoffend 'lies with the courts, not the expertise of psychiatrists and

psychologists. Courts must balance society's interest in protection from harmful

conduct against the individual's interest in personal liberty and autonomy.'"

Ibid. (quoting D.C., 146 N.J. at 59).

      Governed by these standards, we discern no basis to disturb Judge

Freedman's decision. First, it is not necessary that an individual suffer from a

mental abnormality to be deemed a sexually violent predator under the SVPA.

A personality disorder alone may be used as a basis to conclude that one has a


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predisposition to sexually reoffend.         See N.J.S.A. 30:4-27.26 (defining a

"sexually violent predator," in part, as a person who "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") (emphasis added); see also W.Z., 173 N.J. at 129. It is also not

necessary that an individual have a sexual compulsion, such as paraphilia, or a

complete or total loss of control over his or her behavior to be deemed a sexually

violent predator under the SVPA. W.Z., 173 N.J. at 129. Rather, the individual

must be unable to control his or her sexually violent behavior. Ibid. However,

"the diagnosis of each sexually violent predator susceptible to civil commitment

need not include a diagnosis of 'sexual compulsion.'" Ibid.

      In our view, the credible evidence in the record amply supports Judge

Freedman's findings that A.Y. presently suffers from ASPD, which makes it

highly likely he will not control his sexually violent behavior and will reoffend

if not confined to the STU for treatment. Even though A.Y. was not diagnosed

with a form of paraphilia, the State's experts diagnosed him with severe ASPD

that affected him emotionally, cognitively, or volitionally so as to predispose

him to engage in acts of sexual violence. Judge Freedman found the State's

experts opined, credibly, that as a result of his personality disorder, it was highly


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likely that A.Y. would sexually reoffend if not confined to the STU for control,

care, and treatment. We discern no basis to overturn his determination.

      A.Y. argues the State's experts' testimony amounted to inadmissible net

opinions because they gave no empirical basis for their conclusion that A.Y. was

highly likely to reoffend. Pointing to the results of one actuarial instrument,

A.Y. claims the State's experts provided no evidence he has more than a fifty-

one percent risk of sexually reoffending. A.Y. asserts the State's experts failed

to address the base rate of sexual recidivism among individuals similar to A.Y.,

noting one study found the overall sexual recidivism rate was only 13.5 percent.

He also contends neither State expert described their methodology or showed

any reliability in their findings. He argues our Supreme Court's recent decision

in In re Accutane Litig., 234 N.J. 340 (2018), which adopted the factors set forth

in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), requires the

reversal of the trial court's refusal to strike the testimony of the State's experts

as inadmissible net opinions. We are unpersuaded by these arguments.

      When reviewing an evidentiary ruling whether to bar expert testimony,

we apply considerable deference to the trial court and generally do not disturb

the trial court's decision unless the ruling demonstrably comprises an abuse of

discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008); see also Townsend v.


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Pierre, 221 N.J. 36, 52-53 (2015) (noting the decision to admit or exclude expert

testimony is "committed to the sound discretion of the trial court") (citing State

v. Berry, 140 N.J. 280, 293 (1995)).

      "An expert may not provide an opinion at trial that constitutes 'mere net

opinion.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 410 (2014)

(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).

The net opinion rule bars admission "of an expert's conclusions that are not

supported by factual evidence or other data." Townsend, 221 N.J. at 53-54

(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). The expert must

provide the factual basis and analysis that support the opinion, rather than stating

a mere conclusion. Davis, 219 N.J. at 410. Courts "may not rely on expert

testimony that lacks an appropriate factual foundation and fails to establish the

existence of any standard about which the expert testified."        Ibid. (quoting

Pomerantz Paper, 207 N.J. at 373).

      The net opinion rule does not require experts to organize or support their

opinions in a specific manner "that opposing counsel deems preferable."

Townsend, 221 N.J. at 54. Consequently, "[a]n expert's proposed testimony

should not be excluded merely 'because it fails to account for some particular

condition or fact which the adversary considers relevant.'"         Ibid. (quoting


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Creanga v. Jardal, 185 N.J. 345, 360 (2005)). An expert's failure "to give weight

to a factor thought important by an adverse party does not reduce his testimony

to an inadmissible net opinion if he otherwise offers sufficient reasons which

logically support his opinion." Ibid. (quoting Rosenberg v. Tavorath, 352 N.J.

Super. 385, 402 (App. Div. 2002)). Instead, such omissions may be subjected

to exploration and searching cross-examination at trial. Id. at 54-55.

      Even so, the net opinion doctrine requires experts to "be able to identify

the factual bases for their conclusions, explain their methodology, and

demonstrate that both the factual bases and the methodology are [scientifically]

reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417

(1992)).

      In Accutane, the Court explained trial courts perform their "gatekeeping

role" to assure reliability of expert scientific testimony by requiring experts "to

demonstrate" they applied "scientifically recognized methodology in the way

that others in the field practice the methodology." 234 N.J. at 399-400. Thus,

"[w]hen a proponent does not demonstrate the soundness of a methodology, both

in terms of its approach to reasoning and to its use of data, from the perspective

of others within the relevant scientific community, the gatekeeper should




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exclude the proposed expert testimony on the basis that it is unreliable." Id. at

400.

       With regard to quantifying the likelihood of A.Y. sexually reoffending,

Dr. De Crisce did not calculate a recidivism rate for him and Dr. Carmignani did

not quantify his risk of reoffending by assigning a percentage rate. Judge

Freedman noted that in Kansas v. Crane, the United States Supreme Court

recognized "that in cases where lack of control is at issue, 'inability to control

behavior' will not be demonstrable with mathematical precision." 534 U.S. 407,

413 (2002). The Court declined to establish a precise standard for the degree of

"lack of control" that must be proven, stating only "there must be proof of

serious difficulty in controlling behavior." Ibid. Our Supreme Court likewise

did not impose a technical meaning or quantitative threshold, holding "the State

must prove by clear and convincing evidence . . . 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.

       Both of the State's experts interviewed A.Y. extensively and relied on

prior evaluations, treatment records, other appropriate documents, and actuarial

instruments that supported their conclusions. The State's experts provided the

factual bases for their conclusions and explained the methodologies they


                                                                          A-5240-16T5
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employed. Although their conclusions differ from those of A.Y.'s expert, their

conclusions were not net opinions. Their testimony confirmed their opinions

were based on a comprehensive review of data and information of the type relied

upon by others in their scientific community, including the MnSOST-R and

Static-99R actuarial instruments.

      The MnSOST-R and Static-99R "assessment tools are based upon static

factors, which are elements of a person's history which cannot be changed, as

opposed to dynamic factors, which are elements which can be modified over

time." J.P., 339 N.J. Super. at 451.

      The MnSOST-R "measures sexual recidivism by taking into account

certain static factors (historical facts that do not change over time) and attempts

to capture certain dynamic factors (such as an individual's participation in

treatment)." In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 460 n.1

(App. Div. 2006) (citing In re Commitment of R.S., 339 N.J. Super. 507, 517-

19 (App. Div. 2001), aff'd o.b., 173 N.J. 134 (2002)). "The MnSOST-R carries

a possible total score of thirty-one, with a high score being the worst. Any score

of eight or above denotes a 70% recidivism rate and a 'possible' commitment."

E.S.T., 371 N.J. Super. at 569 n.3. A.Y. scored a +10 on the MnSOST-R,

placing him in the high risk category for sexual reoffending.


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      The Static-99R is used to predict sexual recidivism. M.L.V., 388 N.J.

Super. at 460 n.1. "The Static-99 was designed to predict long-range risk for

sexual recidivism by combining two well standardized risk assessment scales."

J.P., 339 N.J. Super. at 451. "Research has shown" the test's "predictive power

is increased" "by combining the factors tapped by these two scales." Ibid. The

Static-99 is a recognized actuarial test used to estimate the probability of

sexually violent recidivism. R.F., 217 N.J. at 164 n.9. A.Y. scored a 5 on the

Static-99, placing him in the moderate-high risk category for sexual reoffending.

      In In re Registrant, C.A., the Court stated scientific literature has shown

"the use of actuarial concrete predictors is at least as good, if not in most cases

better, in terms of reliability and predictability than clinical interviews." 146

N.J. 71, 106 (1996). Allocating weight to risk factors in accordance with

scientific literature and expertise was held an acceptable method of predicting

future criminal sexual behavior. Id. at 105.

      In R.S., we concluded "the use of actuarial instruments is generally

accepted by professionals who assess sex offenders for risks of reoffense." 339

N.J. Super. at 538. We noted "there is support in scientific literature . . . for the

use of these instruments; and that actuarial instruments have been accepted by

the courts of at least six other states." Id. at 548. We held "actuarial instruments


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satisfy the Frye4 test and are admissible for consideration by the State's experts"

at SVPA proceedings "as a factor in the overall prediction process." Id. at 534,

548. Our Supreme Court agreed, holding actuarial risk assessment instruments

are admissible in SVPA commitment hearings "when such tools are used in the

formation of the basis for a testifying expert's opinion concerning the future

dangerousness of a sex offender."       R.S., 173 N.J. at 137.      In a decision

announced the same day, the Court rejected "contentions concerning the

unreliability of those actuarial instruments." W.Z, 173 N.J. at 133. 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." R.F.,

217 N.J. at 164 n.9 (quoting R.S., 173 N.J. at 137).

       The methodology utilized by the State's experts satisfied the requirements

imposed by the Court in Accutane. We discern no abuse of discretion by the

trial court in admitting and considering the testimony of Drs. De Crisce and

Carmignani, including their use of and reliance upon the MnSOST-R and Static-

99R actuarial instruments.

       Affirmed.




4
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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