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                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-5932-17T5

IN THE MATTER OF THE
CIVIL COMMITMENT OF
A.G., SVP-114-00.


                Submitted September 10, 2019 – Decided September 25, 2019

                Before Judges Fisher and Accurso.

                On appeal from the Superior Court of New Jersey,
                Law Division, Essex County, Docket No. SVP-114-
                00.

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

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

PER CURIAM

      A.G. is civilly committed to the Special Treatment Unit (STU), the

secure custodial facility designated for the treatment of persons in need of

commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-
27.24 to -27.38. He appeals from the June 6, 2018 order of the Law Division

continuing his commitment after an annual review required by N.J.S.A. 30:4-

27.35, claiming the judge violated his right to a fair trial by "repeatedly

interrupting" his expert and counsel. He also claims the judge erred by relying

on the State's doctors' inadmissible net opinions of risk of re-offense,

misstating the record underlying one of the expert's opinions, and finding A.G.

has not engaged in drug or sex offender treatment and would not do so if

discharged. We find no merit in those arguments and affirm.

      A.G. is fifty-eight years old and has been civilly committed to the STU

for nineteen years. His first conviction occurred in 1982, when he was twenty-

one. A.G. sexually attacked a stranger on the street at 4:00 a.m. Police

responded to the young woman's screams, and he was arrested at the scene.

The victim claimed A.G. said "he would kill her," if she did not stop

screaming. A.G. was convicted of first-degree aggravated sexual assault, as

well as resisting arrest and first-degree aggravated assault on a police officer,

and sentenced to an aggregate term of eight years in State prison.

      Five years after his release, A.G. committed the predicate offense of

second-degree sexual assault while the victim lay unconscious in her

boyfriend's bed. When the victim's boyfriend awoke, A.G. threatened to kill


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                                         2
him if he called the police. A.G. was sentenced to ten years in prison for that

offense, with a five-year parole disqualifier.

      A.G. was committed to the STU in 2000 following a hearing at which

the State proved by clear and convincing evidence that he had been convicted

of a sexually violent offense, he suffered from a mental abnormality or

personality disorder, and such abnormality or disorder made it "highly likely"

A.G. would "'not control his . . . sexually violent behavior and will reoffend.'"

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

Commitment of W.Z., 173 N.J. 109, 130 (2002)). We have affirmed A.G.'s

continued commitment in five prior opinions encompassing seven prior

appeals. In re Civil Commitment of A.Z.G., No. A-3048-14 (App. Div. Dec.

1, 2015); In re Civil Commitment of A.Z.G., No. A-0158-13 (App. Div. May

28, 2014); In re Civil Commitment of A.G., No. A-4356-05 (App. Div. Nov.

21, 2006); In re Civil Commitment of A.Z.G., No. A-3231-04 (App. Div. Oct.

17, 2005); and In re Civil Commitment of A.Z.G., Nos. A-1587-02, A-3386-

02, A-3506-03 (App. Div. June 21, 2004). 1




1
  Our 2005 opinion notes that residents of the STU without a middle name are
assigned a middle initial of "X" or "Z," explaining the different captions
involving this same individual. See A.Z.G., No. A-3231-04 (slip op. at 2 n.1).
                                                                          A-5932-17T5
                                        3
      At his most recent review hearing in 2018, the State presented the

testimony of a psychiatrist, Dr. Roger Harris, as well as a psychologist and

member of the STU's Treatment Progress Review Committee, Dr. Eugene

Dunaev. Both doctors diagnosed A.G. with Other Specified Paraphilic

Disorder, coercion or nonconsent; Antisocial Personality Disorder, with Dr.

Dunaev adding Antisocial and Narcissistic Traits; and Alcohol, Cannabis or

Stimulant Abuse Disorder in a controlled setting. Both doctors testified those

disorders do not spontaneously remit and noted A.G. scored a four, "an above

average risk to sexually offend" on the Static-99R.2 Both testified A.G. was

highly likely to reoffend.

      Important to both the State's witnesses with regard to A.G.'s continuing

need for commitment was his repetitive rule-breaking while at the STU and his

failure to meaningfully engage in treatment. Dr. Dunaev testified A.G. was

placed on MAP (modified activity placement) three times in the last two years



2
  "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." R.F., 217 N.J. at 164 n.9 (citing Andrew Harris et al.,
Static-99 Coding Rules Revised-2003 5 (2003)). The 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)).
                                                                        A-5932-17T5
                                       4
alone for possession of contraband, and that one of his main treatment

roadblocks is his "arrogance and grandiosity." He also testified A.G. is "rigid

and sensitive," and does not take well to feedback in treatment.

      Dr. Dunaev testified A.G. "wouldn't take responsibility for having

contraband" and felt he didn't deserve being placed on MAP. Dr. Dunaev

explained that when A.G. feels "wronged" in that way it "sets him back

emotionally. Dysregulates. That's where his entitlement comes out. He

becomes more impulsive," and "more verbally . . . oppositional in group."

Asked what connection that had to A.G.'s likelihood to sexually reoffend, Dr.

Dunaev explained

            those things . . . tap into his antisocial features,
            antisocial and psychopathic features that he presents,
            particularly the entitlement, his difficulty with taking
            responsibility, his history of irresponsibility, history
            of impulsivity, and also lifestyle instability. It
            highlights those areas of antisocial and psychopathic
            personality are still quite alive and quite — they're
            here, and they're . . . calling his name. So he still has
            plenty of criminogenic needs that he wants to fulfill.

      Dr. Harris also testified A.G.'s "attitude and behaviors, his poor self-

regulation, his poor judgment, his antisocial attitudes and behaviors increase

his risk to sexually reoffend." Although A.G. acknowledged that both his

victims were unconscious when he penetrated them, he maintained "that


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                                        5
rendering the woman unconscious was not part of his arousal pattern." Dr.

Harris testified the circumstances of those crimes "clearly indicate[] that

coercion and an individual who is incapacitated is part of [A.G.'s] arousal

pattern." Confronted on cross-examination with the report he offered in 2000

on behalf of A.G. at his initial commitment hearing that A.G. did not have a

paraphilic disorder and "does not have deviant arousal," Dr. Harris explained

that in coming to that opinion that A.G. did not "meet the criteria for a sexual

disorder," he "relied heavily on [A.G.'s] self-report" that both crimes involved

only consensual sex.

      Dr. Barry Zakireh, a psychologist, testified on behalf of A.G. that he

suffered from Other Specified Personality Disorder, with antisocial traits and

multiple substance abuse disorders. Although Dr. Zakireh testified he

considered the diagnosis of Other Specified Paraphilic Disorder with non-

consensual features, he determined there was insufficient "evidence for [him]

to distinguish [A.G.'s] acts of rape . . . from an individual that is primarily

opportunistic and antisocial and commits rapes as opposed to one that is

paraphilic and is specifically aroused almost in a preferential and persistent

manner to non-consensual situations."




                                                                            A-5932-17T5
                                         6
      Dr. Zakireh acknowledged that A.G.'s "response to treatment perhaps

overall hasn't been stellar," but concluded "treatment has had at least a

modest" positive effect. He also testified one does not "have to be perfect in

treatment in order to lower their risk to sexually reoffend" and that "the risk

could be lowered just by developmental factors, or changes that occur with or

without their full intention." Dr. Zakireh concluded A.G. was not "highly

likely to reoffend" and "would say that he's far, far below that threshold."

      Based on the testimony of the State's expert witnesses as well as his

review of the documentary evidence in the record, Judge Freedman found "the

only thing that's changed here is that [A.G.] is a little older" than at his last

review. The judge had no difficulty finding the State proved by clear and

convincing evidence "that [A.G.] does, in fact, suffer from a mental

abnormality in the form of a paraphilia and substance abuse disorders, and a

personality disorder," and that those "conditions predispose him to engage in

acts of sexual violence" such that "he would in fact have serious difficulty

controlling his sexually violent behavior" if released and "would within the

reasonably foreseeable future be . . . highly likely to engage in acts of sexual

violence." The judge rejected A.G.'s expert's opinion to the contrary, finding it

not supported by the evidence in the record.


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                                          7
      Judge Freedman noted A.G. had done "almost nothing to mitigate his

risk" with regard to either drug treatment or efforts "to understand his sex

offending," and found his age, standing alone, had not "reduced his risk below

highly likely." The judge concluded based on his "review of this entire file at

length," that "despite the passage of time" since A.G's offenses and taking into

account "the nature of his offenses, the involvement of his antisociality, his

drug and alcohol use, as well as his paraphilia," that he remained "a dangerous

person."

      "The scope of appellate 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)). Because judges who hear SVPA cases have special expertise in the

area, their decisions are entitled to special deference. Ibid. We will "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).

      We disagree with A.G. that the trial judge deprived him of a fair trial by

interrupting his expert and counsel. Having reviewed the transcript, we find

only a knowledgeable and well-prepared judge engaging the expert and

counsel on relevant issues of interest to the judge, sitting as the fact-finder.


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                                         8
We expect a judge in a non-jury trial to actively test an expert's views, see

N.J.R.E. 614, and note the judge did so with each of the experts testifying at

the hearing. We likewise find no merit to A.G.'s argument that the State's

experts relied only on inadmissible net opinions in concluding A.G. was at

high risk to reoffend, having recently rejected the nearly identical argument in

In re Commitment of A.Y., 458 N.J. Super. 147, 168-73 (App. Div. 2019)

(finding the opinions of the State's experts 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").

      A.G.'s remaining arguments on appeal reduce to quarrels with the judge's

fact-finding which we are simply in no position to reject. See Seidman v.

Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). Having concluded Judge

Freedman's decision to continue A.G.'s commitment is amply supported by

substantial, credible evidence in the record, we affirm substantially for the

reasons expressed in his thorough and thoughtful opinion from the bench on

June 6, 2018.

      Affirmed.




                                                                         A-5932-17T5
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