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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0895-17T5



IN THE MATTER OF THE CIVIL
COMMITMENT OF A.R., SVP-746-16.
________________________________

            Argued March 22, 2018 – Decided July 10, 2018

            Before Judges Rothstadt and Gooden Brown.

            On appeal from Superior Court of New Jersey,
            Law Division, Essex County, Docket No. SVP-
            746-16.

            Patrick F. Madden, Assistant Deputy Public
            Defender, argued the cause for appellant
            A.R. (Joseph E. Krakora, Public Defender,
            attorney).

            Nicholas    Logothetis,    Deputy Attorney
            General, argued the cause for respondent
            State of New Jersey (Gurbir S. Grewal,
            Attorney General, attorney).

PER CURIAM

      A.R. appeals from the October 6, 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.

       A.R., who is now forty-four years old, committed his first

non-violent sexual offense in 1995 and was sentenced to three

years of probation for sexually touching two women in a park.

While on probation, he committed three additional non-violent

sexual offenses against other female victims from 1996 to 1998,

each resulting in additional sentences to probation.                 In 2003,

A.R. raped a thirteen-year-old girl at knifepoint in her home

while her father was at work.             He later admitted that he knew

the family and often saw the young victim when he used to work

with her father.

       In 2004, A.R. pled guilty to aggravated sexual assault with

a weapon and was sentenced to a fifteen year prison term and

community supervision for life (CSL), and required to comply

with the provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23.

A.R.     initially   was    evaluated     at   the   Adult    Diagnostic      and

Treatment Center at Avenel (ADTC) but was found ineligible to

serve his sentence at the facility.            Later, A.R. was transferred

to and received treatment at the ADTC from August 2011 until

March    2015,   where     "[h]e   attended    groups   and   focused     issues

around     family    background       and      dysfunction     and   criminal

attitudes."      A.R. later withdrew from treatment for some time in

                                      2                                 A-0895-17T5
2012, and upon his return to the facility, he was placed on

Level 3 of the treatment.             Prior to his release, the State

applied for A.R. to be civilly committed under the SVPA and on

October 4, 2016, the Law Division civilly committed him to the

STU.

       On October 6, 2017, Judge Vincent N. Falcetano, conducted

A.R.'s    first   review   hearing,       which   is   the   subject   of   this

appeal.     At the hearing, A.R. did not challenge the fact he

committed   the   requisite   sexually       violent    criminal    offense    or

suffered from a mental abnormality or personality disorder which

predisposes him to commit acts of sexual violence.1                The focus of



1
   The Supreme Court has explained the proofs required at the
initial hearing and subsequent reviews as follows:

            At the commitment hearing, the State must
            establish three elements: (1) that the
            individual has been convicted of a sexually
            violent offense; (2) that he suffers from a
            mental abnormality or personality disorder;
            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[.]"    Although the first two
            elements derive directly from the statute,
            to comport with substantive due process
            concerns, this Court interpreted the third
            statutory element as requiring the State to
            show that a person is "highly likely," not
            just "likely," to sexually reoffend.

                                                                    (continued)

                                      3                                A-0895-17T5
the trial was the third required finding that A.R. is highly

likely to reoffend.

       At the hearing, the State relied on the unrefuted expert

testimony of psychiatrist Roger Harris, M.D., who opined that

A.R.'s risk to sexually reoffend remained high.                     Because A.R.

elected not to participate in the evaluation, Harris was unable

to interview A.R.         However, the doctor prepared a report on

September    11,      2017,    based    upon      his      review   of    clinical

certificates,      presentence     reports,       prior      Treatment    Progress

Review    Committee    (TPRC)    reports,      STU    treatment     records,      and

related documents, which were admitted into evidence.                    The State

also admitted into evidence without objection a report prepared

by Debra Roquet, Psy. D., a member of the STU's TPRC, which

largely    supported    Harris's       findings      and     conclusions.        Both

Harris and Roquet addressed the likelihood of A.R. reoffending

if he was no longer committed.

       Harris's report highlighted A.R.'s prior sexual offenses

and stated that several involved young girls and children, and

were   "frotteuristic     or    exhibitionistic         in   nature."       He   also

reported that many years after the 2003 offense, A.R. admitted

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



                                        4                                   A-0895-17T5
to three separate doctors his attraction to the thirteen-year-

old girl, and that he had a "tendency to seek out vulnerable

persons," which "made him feel powerful."

       Harris       testified        that      A.R.'s       sex    offending        history

demonstrated that he is unable to control his sexual drive "in

spite of his convictions and losing his liberty."                       He also noted

that empirical data shows that those who violate parole, as A.R.

had    in   the     past,    had   an    "increase[d] . . . risk          to    sexually

reoffend       in     the     future[,]"            which   further    supported          his

conclusion that A.R. is at a higher risk of reoffending because

he is unable to control his sexual impulses.

       Harris       also    testified        that    A.R.'s   progression      of     sexual

acts    and    even    his     minor     offenses       "illustrate     his    cognitive

distortions[.]"            He stated that in 2015, A.R. told a physician

that he sexually touched a woman because "he thought the woman

was purposely making her breasts go [up] and down while walking

in    the     park"    in    order      to    attract       his   attention.          Harris

testified that this "illustrates several layers of his inability

to regulate himself, to overly interpret sexual issues," and

that "he thinks things are directed at him." In addition, Harris

explained that A.R. exhibits these same characteristics while

incarcerated.         For example, when he is challenged, "he gets very

upset and becomes quite aggressive," and has reported that "he

                                               5                                    A-0895-17T5
feels that officers are targeting him and making sexual comments

to him."

    Harris stated further that another factor that supported

his assessment of A.R. is that "he has conflict within his peer

relationships[.]"         Specifically, he stated that A.R. admitted to

another physician that he smacked his girlfriend because "he

felt she was harassing him."              Harris also determined that even

though     A.R.     had    "consensual       sexual    relations"       with      his

girlfriend and a wife in a previous marriage, he still needed to

"sexually     gratify        himself . . . by       engaging        in . . . other

illegal paraphilic acts."

    With     respect       to    his    substance     abuse     history,      Harris

testified that A.R. "reported drug use as a way to avoid prison

sentencing[,]" and was admitted to a drug program, but "left

that program without consent[.]"             The doctor commented that with

A.R.,    "it's     hard   to    know    what's   accurate     and    what   is    not

accurate," and he could not determine whether A.R. had a drug

problem or was being manipulative when seeking drug treatment.

Similarly, Harris found that at times it appeared as though A.R.

"malinger[ed] and feign[ed] psychiatric symptoms to once again

attempt to decrease his responsibility [for] his behavior."

    Harris        reviewed     A.R.'s   treatment     history   and    found     that

A.R. had not improved.            He stated that prior to going to STU,

                                         6                                  A-0895-17T5
A.R. engaged in        "sex offender treatment," where he had poor

attendance and did not complete the program.                       Since his time at

STU, Harris testified that A.R. "is difficult to engage[,]" and

"is    essentially     just   learning        how    to    use    treatment   at    this

point[.]"       Based upon his review, the doctor concluded that A.R.

"has demonstrated very poor volitional control," and "cognitive

distortion," which affects him emotionally.

       Harris    diagnosed        A.R.    with      other      specified    paraphilic

disorder, other personality disorder with antisocial traits, and

borderline      intellectual       functioning.           He   explained    that    A.R.

does   not   meet     the   "full    criteria       for     antisocial     personality

disorder,"      but   he    has    many    traits         including,   "impulsivity,

irritability, . . . aggressiveness,                 reckless      disregard   for    the

safety of others, [and] failure to conform to social norms."

The doctor also diagnosed A.R. with cocaine and alcohol use

disorders, although he reminded the court that A.R.'s reporting

of his drug use history was unreliable.                          If accurate, Harris

concluded that A.R.'s drug use "lowers his inhibitions," making

it more difficult to control his sexual drive and increasing the

chances that he will sexually act out.




                                          7                                   A-0895-17T5
        Harris also reported that A.R. scored seven on the Static-

99R,2    indicating    a   "well   above   average"     risk   to    sexually

reoffend.     However, he pointed out that "[t]his is not a full

estimate for his risk to sexually offend" because it "does not

address    dynamic    or   psychological   factors[,]"    such      as     A.R.'s

"multiple deviant arousals," failed supervision, poor cognitive

problem solving and poor self-regulation.             According to Harris,

A.R. "remains a high risk to sexually reoffend and continues to

meet the criteria for civil commitment under" the statute.

        Roquet's report that was prepared after the TPRC examined

A.R. on September 13, 2017, stated that A.R. was placed in Phase

Two3 when he was civilly committed to the STU.            Based on A.R.'s

treatment plan review from May 2017, the committee observed that

the treatment team recommended that A.R. remain in                   the same

phase. The TPRC concluded that A.R.'s progress in treatment has

2
    "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.       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)).
3
   At the hearing, Harris defined Phase Two of treatment at STU
as "the phase where men learn how to use treatment[,]" and "how
to engage with each other and . . . how the therapeutic process
works."



                                    8                                    A-0895-17T5
not mitigated his risk for sexual recidivism, and that he is

"highly likely to reoffend if not confined to the STU."

       Roquet      explained       that   there    are    several     indicators       that

support the TPRC's finding, including A.R.'s Static-99 score,

his    high    range     dynamic     risk   factors,      antisocial        personality,

psychopathic personality traits, and substance abuse.                          According

to the report, A.R. should continue in Phase Two as he is "not

yet being open in treatment" and is still in the early phase of

treatment.

       In     an    oral     opinion      placed     on   the    record      after      the

presentation of the evidence, Judge Falcetano found by clear and

convincing evidence that A.R. was a sexually violent predator in

need of continued civil commitment in a secure facility under

the    SVPA.       The     judge    found   Harris    "qualified       to    render     the

opinions that he did, and [found] his testimony to be eminently

credible."         He observed that the STU report that was referenced

in Harris's testimony, indicated that A.R. "is still adapting to

the [facility] and to treatment, that he presents with a number

of risk factors which need to be addressed over time[,]" and he

"scores well above average in the risk to reoffend category"

that    requires       him   to    continue     in   Phase      Two   of    his   current

treatment.



                                            9                                     A-0895-17T5
       The judge concluded by clear and convincing evidence that

A.R. "suffers from a mental abnormality or personality disorder

that . . . can      only        be   mitigated      by    sex     offender     treatment,"

that the disorder "affects the person cognitively, emotionally

or    volitionally,        which       pred[isposes]        the     person     to     sexual

violence[,]"      and     that       A.R.    is    "presently       highly      likely      to

sexually reoffend, and in need of confinement at the STU."                                  On

the   same   day,       Judge    Falcetano        entered    a     memorializing       order

continuing A.R.'s commitment and this appeal followed.

       On appeal,4 A.R. again does not challenge the finding that

he    committed     a    sexually       violent         offense,    and    that     he    was

"properly    diagnosed          with   a    mental      abnormality       or   personality

disorder"    that        predisposes        him      to    commit     acts     of     sexual

violence.      Rather,          he   argues      that     Judge    Falcetano      erred     in

concluding that the State met its burden of proof that he is

highly likely to reoffend because the judge "did not weigh the

evidence properly[,]" and if he had, he "would have come up with

a different conclusion[.]"

       A.R. relies on In re Civil Commitment of V.A., 357 N.J.

Super. 55 (App. Div. 2003), arguing that the judge should have

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-0895-17T5
considered     the    goal       of    gradual          de-escalation        in     restraints

permitting a conditional release because he "no longer meets the

criteria for civil commitment."                       He also asserts that the judge

"inappropriately gave weight to other sex offenses" that only

involved "frotteuristic" behavior "to make [his] determination

that A.R. was highly likely to commit acts of sexual violence."

Further, A.R. contends that given his time at ADTC and STU, "he

has had many years of exposure to sex offender treatment," which

is sufficient "to make a finding that [he] is no longer highly

likely" to reoffend.             We reject these arguments and affirm.

      "The     scope       of      appellate             review       of     a      commitment

determination is extremely narrow.                         The judges who hear SVPA

cases generally are 'specialists' and 'their expertise in the

subject' is entitled to 'special deference.'"                           R.F., 217 N.J. at

174 (citations omitted).

      "The   SVPA     authorizes            the       involuntary       commitment      of    an

individual     believed      to       be    a        'sexually    violent        predator'    as

defined   by    the       Act.        The       definition       of     'sexually      violent

predator'    requires        proof         of    past     sexually      violent       behavior

through its precondition of a 'sexually violent offense.'"                                    In

re   Commitment      of    W.Z.,      173        N.J.    109,     127      (2002)    (citation

omitted).      It also requires that the person "suffer[] from a

mental abnormality or personality disorder that makes the person

                                                11                                    A-0895-17T5
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         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       SVPA    applies       to   the

annual review hearing.               See In re Civil Commitment of E.D., 353

N.J. Super. 450, 452-53 (App. Div. 2002).                            As noted earlier, 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, while "[a] trial judge is 'not required

to accept all or any part of [an] expert opinion[,]'" he or she

may "place[] decisive weight on [the] expert."                                R.F., 217 N.J.

at 156, 174 (second alteration in original) (citation omitted).

Furthermore,        "an   appellate          court   should          not     modify    a    trial

                                             12                                         A-0895-17T5
court's determination either to commit or release an individual

unless   'the   record      reveals      a    clear       mistake.'"       Id.    at   175

(quoting In re D.C., 146 N.J. 31, 58 (1996)).

       We find no clear mistake on this record.                      We are satisfied

that   the   record       amply    supports         Judge    Falcetano's        decision,

finding that A.R. suffers from paraphilia, among other mental

abnormalities or personality disorders, a necessary predicate

for continued commitment under the SVPA.                     See, e.g., In re Civil

Commitment of D.Y., 218 N.J. 359, 381 (2014).                        Based on credible

expert testimony, the judge determined that A.R.'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 (App.

Div. 2001), was proper.           Contrary to A.R.'s assertions, this was

not a case where the State was "unable to justify the continued

confinement     of    the     committee         based       on    the     progress     the

committee" has made so as to warrant "intermediate levels of

restraint."     V.A., 357 N.J. Super. at 64 (quoting E.D., 353 N.J.

Super. at 456).

       Affirmed.



                                         13                                      A-0895-17T5
