                                   RECORD IMPOUNDED

                              NOT FOR PUBLICATION WITHOUT THE
                             APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-2621-18T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF S.A.,
SVP-779-18.
_____________________________

                Argued May 14, 2019 – Decided May 29, 2019

                Before Judges Fisher, Hoffman and Suter.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Docket No. SVP-779-18.

                Joan D. Van Pelt, Designated Counsel, argued the cause
                for appellant S.A. (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

       Appellant S.A. appeals the judgment that civilly committed him to the

Special Treatment Unit (STU) as a sexually violent predator under the Sexually

Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm the

judgment.
      From 1997 and 1998, appellant sexually assaulted five children—all of

whom were male and between the ages of six and fifteen—by performing oral

sex on the victims without their consent, having them perform oral sex on him,

and exposing himself and masturbating in front of them. He was twenty-three

or twenty-four when he committed these offenses. Appellant was charged in

Pennsylvania where the offenses occurred with five counts of involuntary

deviate sexual intercourse and the corruption of minors.

      After appellant's arrest in Pennsylvania, a parent in New Jersey alerted the

Hamilton Township police that appellant may have sexually abused her son.

Investigation revealed that between 1994 to 1996, appellant sexually assaulted

five male children, ages eight to thirteen, by forcing his victims to perform oral

sex, performing oral sex on them, watching X-rated movies, and masturbating

with or in front of them. Appellant was charged with four counts each of first-

degree aggravated sexual assault and second-degree sexual assault; two counts

of endangering the welfare of a child; two counts of fourth-degree criminal

sexual contact; and one count of third-degree endangerment.

      In 1998, appellant pleaded guilty to the charges in Pennsylvania where he

was sentenced to a term of seven years and six months to twenty-five years in

prison. In July 2004, appellant pleaded guilty in New Jersey to two counts of


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                                        2
second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of third-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4. He was sentenced

to a ten-year term at the Avenel Adult Diagnostic Treatment Center (ADTC) on

the sexual assault counts and a five-year concurrent term on the endangerment

count, also to be served at ADTC. The New Jersey sentences were consecutive

to the sentence he was serving in Pennsylvania. He was sentenced to comply

with all Megan's Law 1 requirements.

        Appellant completed a treatment program for sex offenders while

incarcerated in Pennsylvania. In January 2012, when appellant completed his

sentence in Pennsylvania, he was transferred to ADTC to serve his New Jersey

sentence, where he also participated in sex offender specific treatment. In

January 2018, the State petitioned to civilly commit appellant under the SVPA.

He was temporarily committed to STU.

        Dr. Indira Cidambi, a psychiatrist, interviewed appellant twice in 2018.

She testified at the SVPA civil commitment hearing that she diagnosed appellant

with three disorders: "pedophilic disorder, non-exclusive type, attracted to

males"; "other specified personality disorder"; and "schizoaffective disorder."




1
    N.J.S.A. 2C:7-1 to -23.
                                                                        A-2621-18T5
                                        3
She testified that both the pedophilic disorder and personality disorder

predispose appellant to sexual reoffending.

      Dr. Cidambi testified       about appellant's underlying offenses           in

Pennsylvania and New Jersey. Appellant acknowledged to Dr. Cidambi that he

committed offenses by manipulating and grooming his victims.        The July 2017

treatment summary report from ADTC that Dr. Cidambi relied on in forming her

opinion indicated that after seven years of treatment there, appellant's insights

were "superficial." The report said appellant continued to try to exert influence

over the younger inmates by buying them food and other items.

      Dr. Cidambi testified that appellant scored a two on the Static-99R,2 which

put him "in an average risk category of sex offenders." She thought the score

was an underestimate, however, when combined with dynamic risk factors. Dr.

Cidambi testified that despite years of sex offender treatment, appellant still did

not have a depth of understanding; "he is not able to explain his deviancy . . .

he's still struggling." She explained he "has poor self-regulation, which is seen

through the behavior at the ADTC, sexually acting out, [and] poor cognitive



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." In re Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing
Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)).
                                                                           A-2621-18T5
                                        4
problem solving skills." In her opinion, appellant would be "highly likely . . .

to reoffend if he is not . . . confined to a structured environment such as STU."

She stated in her report that his "lack of volitional control is not only evidenced

in his sexual crimes in the community, but also his continued impulsive sexual

actions while incarcerated." She concluded his "propensity to sexually re-offend

has not been significantly mitigated."

      Dr. Eugene Dunaev, a psychologist, conducted a forensic evaluation of

appellant while at STU and prepared a report. He testified that appellant had a

large number of victims in two different states; there was a high frequency of

sexual abuse; he used some victims to entice others; and the abuse lasted for

several years.   Dr. Dunaev concluded this was a "lifestyle that [appellant]

developed in the community," meaning that he looked for new victims.

Appellant demonstrated "impulsivity and also the kind of long, thought out

predatory pattern of looking for new victims." His victims were between six

and fifteen, meaning that appellant was a fixated pedophile. He focused his life

"on having sexual activity with children." According to the doctor, he was able

to "groom and manipulate the children" and also was "able to circumnavigate

the adults and the family, and hide his sexual abuse from them."




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                                         5
      After years in treatment in Pennsylvania and at the ADTC, Dr. Dunaev

reported that appellant denied sexual attraction to young boys even though that

was his history. He also reviewed appellant's ADTC treatment records. These

suggested appellant was "emotionally unstable," "impulsive" and had "poor

judgment," and that his engagement with treatment at ADTC was "superficial."

      Appellant's PCL-R3 score indicated a moderate range of psychopathy that,

according to Dr. Dunaev, meant he is "a person who deceives." The Stable-

20074 test scored in the "high range of dynamic treatment needs." Dr. Dunaev

testified that the Static-99 score of two undervalued appellant's risk.

      Based on his clinical interview with appellant, Dr. Dunaev testified that

appellant was either withholding information about his offenses or trying to "get

over" on those assessing him. He still had some "distortions" regarding his

victims, because appellant expressed to the doctor that they felt "cared for" by

him, or their "grades went up," or one boy "stopped wetting the bed."



3
  "The PCL-R test is a widely used method to measure psychopathic personality
traits." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 206 (2001) (Baime, J.,
dissenting).
4
  The Stable-2007 is an actuarial instrument used to assess dynamic risk factors
that can change over time. Kevin Baldwin, Sex Offender Risk Assessment, Sex
Offender Management Assessment and Planning Initiative 2-3 (July 2015),
https://www.smart.gov/pdfs/SexOffenderRiskAssessment.pdf.
                                                                          A-2621-18T5
                                        6
      Dr. Dunaev diagnosed appellant with "pedophilic disorder, sexually

attracted to males, non-exclusive type" that he said "predisposes him to commit

sexually violent acts." He also diagnosed appellant with an "other specified

personality disorder (with antisocial features)." In combination, the disorders

created a lifestyle that focuses "largely on sexual impulses."           He was

manipulative and able to hide his actions for years; he also was manipulative at

ADTC, which "confirmed" the doctor's diagnosis of a personality disorder.

Appellant was diagnosed with "schizoaffective disorder," although by itself this

did not predispose him to commit sexually violent acts.

      Dr. Dunaev testified that "when [the disorders] come together, they make

[appellant] highly likely to engage in sexual violence in the community."

Although appellant consistently attended all his programs in Pennsylvania and

at ADTC, and voluntarily enrolled in sex offender specific treatment at STU,

Dr. Dunaev concluded that appellant "tends to minimize things. He changes his

story, so that is a concern and could be a treatment block whether he is doing

treatment here or on the outside in an outpatient setting." Dr. Dunaev testified

that appellant is "highly likely to sexually reoffend in the community" if he were

released. Factors that supported his conclusion included appellants "sexual

deviance, anti-social traits, as well as serious mental illness."


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                                         7
      Dr. Daniel Greenfield, a psychiatrist, performed a forensic evaluation and

prepared a report for appellant. He testified that "from a clinical perspective

. . . [appellant] could safely be discharged with a good treatment . . . and follow-

up plan and monitoring in place, and would not be highly likely to reoffend

sexually . . . ." He diagnosed appellant with "pedophilic disorder exclusive type

(males) [and] schizoaffective disorder," but not with "other specified personality

disorder." Neither disorder "predisposed" appellant to "commit crimes of sexual

violence." Dr. Dunaev testified that appellant is "highly likely to sexually

reoffend in the community" if he were released. Factors that led Dr. Greenfield

to conclude appellant was not likely to reoffend included appellant's

intelligence, his current age (then forty-four), the lack of an alcohol or drug

problem, the stability of his psychotic level disorder, and low scores on the

various tests.

      In his view, appellant would be highly likely to comply with conditions

of release because he is "not as impulsive as he used to be." Dr. Greenfield

discounted the ADTC treatment summary in forming his opinion because its

"description of what [appellant] did was so vague."         He thought appellant

"largely learned his lesson and . . . is not likely to re-engage in those kinds of

protean behaviors if he were released." At the same time, he testified "it would


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                                         8
be an incredible mistake just to discharge him with no treatment plan and no

monitoring and no nothing. That would be a guaranteed disaster." The doctor

suggested a structured discharge plan that included furloughs to determine if

appellant could apply the interventions he learned from treatment when he is in

the community.

      The court held that appellant met the criteria for civil commitment under

the SVPA. It found that appellant was convicted of sexual offenses against

multiple prepubescent victims in New Jersey and Pennsylvania, and that these

offenses spanned more than a two-year period. Appellant manipulated the adults

to gain access to the children.    While incarcerated, appellant received sex

offender treatment in Pennsylvania and in New Jersey, but his treatment was

"very superficial" because he did not do the necessary work, even though

intellectually he had the capacity. The court concluded "the treatment effect

[was] very minor." He has been in STU since 2018 and that minor treatment

effect has "continued right on through here."

      The court reviewed the evidence and testimony of the expert witnesses.

He concluded that Dr. Cidambi and Dr. Dunaev were credible witnesses. The

court found, based on their testimony, that there was clear and convincing

evidence appellant "suffers from pedophilia" and that "predisposes him to sexual


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                                       9
violence." The court also found appellant had "serious difficulty controlling his

sexually violent behavior," he presently "is highly likely to sexually reoffend"

and would need additional treatment. The court also found that Dr. Greenfield

was credible but disagreed with him about whether appellant was highly likely

to reoffend.

      Appellant appeals his civil commitment under the SVPA. He contends

the court erred in finding that he was highly likely to reoffend because of his

years of sex offender treatment and the fact that he now is forty-four years old.

He contends the court erred by relying on the ADTC treatment summary as

substantive evidence. This was the sole issue raised at oral argument .

      Our scope of review of judgments in SVPA commitment cases is

"extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 58

(1996)). "The judges who hear SVPA cases generally are 'specialists' and 'their

expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re

Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). "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


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                                       10
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); see also In re Civil Commitment of J.M.B., 197 N.J. 563, 597

(2009).

      Involuntary civil commitment under the SVPA can follow an offender's

completion of a custodial sentence. Three requirements must be satisfied to

classify a person as a sexually violent predator: (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.'" R.F., 217 N.J. at 173

(quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)); see N.J.S.A.

30:4-27.26.

      The SVPA defines "mental abnormality" as "a mental condition that

affects a person's emotional, cognitive or volitional capacity in a manner that

predisposes that person to commit acts of sexual violence." N.J.S.A. 30:4-27.26.

The mental abnormality or personality disorder "must affect an individual's


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                                       11
ability to control his or her sexually harmful conduct." W.Z., 173 N.J. at 127.

A showing of an impaired ability to control sexually dangerous behavior will

suffice to prove a mental abnormality. See id. at 129; see also R.F., 217 N.J. at

173-74.

      At an SVPA commitment hearing, the State has the burden of proving the

offender poses a threat "to the health and safety of others because of the

likelihood of his or her engaging in sexually violent acts." W.Z., 173 N.J. at

132. "[T]he State must prove that threat by demonstrating that the individual

has serious difficulty in controlling sexually harmful behavior such that it is

highly likely that he or she will not control his or her sexually violent behavior

and will reoffend." Ibid.

      There was ample evidence to support the court's finding that appellant

should be civilly committed to STU under the SVPA because all the required

elements were proven. Appellant was convicted of sexually violent offenses

under the SVPA based on his conviction in New Jersey of second-degree sexual

assault. See N.J.S.A. 30:4-27.26. His convictions were based on his sexual

assaults on young boys aged six to fifteen for more than a two-year period.

      All the doctors diagnosed appellant with a pedophilic disorder. The court

credited the State doctors' testimony that found appellant also suffered from a


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                                       12
personality disorder, and that the two disorders, in combination, predisposed

appellant to reoffend in a sexually violent manner within the meaning of the

SVPA. Dr. Greenfield did not find that appellant had a personality disorder, but

the court was permitted to agree with one expert over another. See Angel v.

Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961)

(recognizing the fact-finder's prerogative to accept the opinions of certain

testifying experts and to reject competing opinions of an opposing expert).

      The record supported the court's conclusion that appellant's mental

abnormality or personality disorder makes it highly likely that he will not control

his sexually violent behavior and will reoffend. All the doctors formed their

opinions based on their interviews, testing and review of the records that

included the ADTC treatment summary. This record was admitted in evidence

without objection. The records supported the conclusions of Drs. Cidambi and

Dunaev that appellant's understanding of his offending dynamic and relapse

prevention concepts were "superficial" although he had been in treatment for

twenty years. He continued to show manipulative behavior. Both doctors

concluded, based on their interviews and records, that he was highly likely to

reoffend as a result of his psychiatric disorders.




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                                       13
      A trial judge in an SVPA commitment hearing may consider hearsay in

order to assess the credibility of expert testimony, if the expert has based his

opinion on such evidence and the evidence is "of a type reasonably relied upon

by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of

A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted

to rely upon hearsay information in forming an opinion with respect to an

individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J.

Super. 599, 612 (App. Div. 2003) (citing State v. Eatman, 340 N.J. Super. 295,

302 (App. Div. 2001)). The judge may not consider such hearsay statements as

substantive evidence unless the statements come within an exception to the

hearsay rule. See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56

(App. Div. 2004). We are satisfied from our review of the record that the judges

adhered to these principles in rendering their decisions in this case.      The

pertinent query is whether "the opinion ultimately rendered . . . is that of the

witness based on his or her own evaluation of the committee, prior offenses, and

objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473,

492 (App. Div. 2005).

      The record here is clear that Drs. Cidambi and Dunaev formed their own

opinions based on an assessment of information of the type relied upon by


                                                                        A-2621-18T5
                                      14
experts in their field. The court's reference to the ADTC report was made in

evaluating the credibility of the expert witnesses and not as substantive

evidence.

      Dr. Greenfield did not recommend appellant's immediate release without

further planning and conditions. He did not detail what that would entail. He

did not address the Stable-2007, which showed high results. Where there was

substantial evidence in the record, the court was permitted to credit the opinions

of the other experts, who concluded that appellant should be civilly committed

because he meets the definition under the SVPA of a sexually violent predator

and is highly likely to reoffend if released. Accordingly, there is no basis for

reversal on this record.

      Affirmed.




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                                       15
