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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1056-17T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF P.W., SVP-435-06.

________________________________

            Argued March 22, 2018 – Decided July 11, 2018

            Before Judges Rothstadt and Gooden Brown.

            On appeal from Superior Court of New Jersey,
            Law Division, Essex County, Docket No. SVP-
            435-06.

            Patrick Madden, Assistant Deputy Public
            Defender, argued the cause for appellant
            P.W. (Joseph E. Krakora, Public Defender,
            attorney).

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

PER CURIAM

     P.W.    appeals      from   the   Law    Division's    October     11,   2017

judgment,    ordering      his   continued     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.

      P.W.     is   a    forty-nine-year-old          man   with     a   significant

history of committing sexual offenses against children dating

back to 1987.          In September 1997, P.W. was charged with sexual

assault, child abuse, and endangering the welfare of a child for

touching and fondling a nine-year-old boy's genitals.                       He pled

guilty to endangering the welfare of a child and was sentenced

to five years at the Adult Diagnostic Treatment Center (ADTC).

      Just days before the September incident, on or about August

29,   1997,     P.W.     walked    into    a   basement     where    children     were

playing and fondled another young boy's genitals, and warned him

that if he told anyone, he would "kick [his] ass."                       Because of

this threat, the child did not disclose the incident to his

mother until September 15, 1997.               Reportedly, the child's sister

was   also    present     and     witnessed    P.W.   touch    her    brother.      In

addition, she reported that P.W. attempted to touch her in her

private      area   as   well.      P.W.   pled   guilty      to    endangering    the

welfare of a child and was sentenced to the ADTC for five years

to run concurrent to the sentence he received from the September

incident.

      In 2002, while on parole, P.W. informed a parole officer

that he had just touched a seven-year-old boy on his genitals

                                           2                                A-1056-17T5
while in a grocery store.                 P.W. was arrested and charged with

sexual assault, endangering the welfare of a child and child

abuse.        In January 2003, he pled guilty to sexual assault and

was sentenced to five years in the ADTC.

       The     State    petitioned       for        P.W.'s       involuntary       commitment

under    the    SVPA    in    2006,      and       on    February       7,   2007,    the    Law

Division entered a judgment committing P.W. to the STU.                               A first

review    hearing       was    conducted           on    April    4,    2008,   and     P.W.'s

commitment was continued.                In 2009, STU entered into a court

ordered discharge plan for an appropriate placement for P.W.,

but he expressed "concerns of reoffending [if he was] placed

back into the community" and the plan was abandoned.                               Subsequent

hearings have been held each year prior, resulting in P.W.'s

continued commitment.

       The     most    recent    review,           which    is    the    subject     of     this

appeal,       was   conducted       by   Judge          Honora    O'Brien     Kilgallen       on

October 11, 2017.             At the hearing, P.W. did not challenge the

fact     he    committed      the     requisite            sexually      violent     criminal

offense or suffered from pedophilia, which predisposes him to




                                               3                                      A-1056-17T5
commit acts of sexual violence.1            The focus of the trial was the

third required finding that P.W. 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

P.W.'s    risk   to        sexually    reoffend      remained    high.         After

interviewing      P.W.         and     reviewing       previous      psychiatric

evaluations,     STU       treatment   records,      and   related    documents,

Harris    prepared     a    report,    which   was    admitted    into   evidence

without   objection.          Similarly,    the   Treatment      Progress     Review

Committee's (TPRC) report prepared by Jamie R. Canataro, Psy.D.


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.

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



                                        4                                   A-1056-17T5
was also admitted into evidence by consent.                        The doctor prepared

the   report     after    she   participated           in    the     TPRC's   review     and

interview of P.W.             Additionally, P.W. testified by making a

formal statement at the hearing.

      Harris concluded that P.W. is "highly likely to sexually

reoffend if placed in a less restrictive setting than" STU.

Harris testified to P.W.'s prior sexual offenses, stating that

his evaluation shows "that his arousal is more to boys" than

girls,    and    that    he   acts    on    his       arousals     despite    his     prior

incarcerations.         According to Harris, P.W. reported that he had

not masturbated to images of young girls in the three months

prior    to    the    evaluation,     but       did    admit    to     "masturbating       to

images of eight to nine-year-old girls once to twice a week for

three months" prior to that, and "three to four times a week

eight months" before.           Harris concluded that P.W. "demonstrates

that he is unable to control his sexual arousal," and that it is

"actually alarming[] that he has been at ADTC twice and . . . at

the STU for over a decade, and he is still engaging in those

behaviors that put him at high risk to sexually reoffend."

      During      his    evaluation,        Harris       also      focused    on     P.W.'s

reported       schizophrenia,        finding      that       "[h]e     doesn't     display

current       frank   psychotic      symptoms"         and     "[h]e    denies     hearing

voices . . . [or that] people are trying to hurt him."                                   The

                                            5                                      A-1056-17T5
doctor   noted    that     it    has    been   difficult   for     evaluators    to

"understand      whether    he    has    an    autism   spectrum    disorder     or

whether he has a schizophreniform disorder."

     Based on P.W.'s "self-report of having an arousal to girls

and boys," and his actions due to his arousals, "resulting in

both arrest and convictions," Harris found that P.W. "does not

have the necessary volitional control," of his "sexual arousal

pattern."     Harris diagnosed P.W. with pedophilic disorder and

schizophrenia.      He explained that there is "probably a secondary

characteristic of the schizophrenia [that] does interfere with

some of his ability to use treatment[,]" such as being socially

awkward and his poor interpersonal skills.                  Harris also gave

P.W. a score of six on the Static-99R,2 indicating an above

average risk to sexually reoffend.3



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 pointed out a discrepancy in his report
where he incorrectly stated that P.W.'s score is a three, when
in fact it was a six.



                                         6                               A-1056-17T5
       Canataro's report that was prepared after the TPRC examined

P.W. on April 18, 2017, recommended that, despite P.W.'s more

than ten years at the STU, he remain in Phase Three A, an early

treatment phase.         Based on a review of P.W.'s sexual offense

history, clinical interview, and STU treatment notes, the TPRC

concluded that P.W. "continues to demonstrate mediocre treatment

gains[,]" and should continue with his current treatment program

as "he remains highly likely to sexually offend if not confined

to a secure facility such as the STU at this time."

       Canataro explained that even though the "STU entered into a

court order to continue" a discharge plan to release P.W. in

2009, P.W. "consistently voices concerns of reoffending should

he be placed back into the community," and thus, still remains a

high risk of sexually reoffending.                   According to the report,

P.W.   should    continue       with     his    treatment    plan,    incorporating

programming      that    addresses       "his    interpersonal       style . . . to

understand      how    others    perceive       him[,]"     and   his    "emotional

regulation concepts."

       In his statement to the judge, P.W. testified that as a

child he was diagnosed with ADHD and hyperactivity, and as of

2016, he was diagnosed with autism.                  He spoke at length about

his    request    to    set     up   a   structure    and     receive    additional

resources once he left ADTC, but claimed that the Department of

                                          7                                A-1056-17T5
Human Services would not help him.                      P.W. further stated that

when he realized he was a few months from being released, he

"became        a        little           alarmed          because           [he]         was

scared . . . personally of being put back into that build up

that [he] was in," knowing that parole and SSI could not assist

him with his needs.             He stated that his therapist told him that

"even though [he did not] fit the criteria for commitment," he

was going to recommend that he be committed to Ann Klein, "where

they can take the responsibility of helping [him] to set up the

things    in   which"      he   needed     on    the    outside.        Following       this

discussion,      P.W.      stated    that       he   never      heard     anything      else

regarding commitment, and instead he received paperwork to sign,

believing he would be discharged.

    P.W. claimed that the main reason he was not discharged in

2007, at his first hearing, was because he did not have the

proper support set up on the outside for his release.                         According

to P.W., there was an agreement with the Attorney General to

discharge him because they believed that he "wasn’t a high risk

as long as [he] had the structured support" on the outside.                                He

pointed    out      that    over     the    past       eleven     years    since      being

committed,     he    has    "tried    to    explain       [that    he]     need[ed]      the

support, and they [kept] saying there is no support . . . ."

P.W. clarified the type of support he needed, stating "when I am

                                            8                                      A-1056-17T5
out there I can still remain in contact with . . . people in the

Annex . . . so     I    can   talk   with     them . . . [and]           I    can      have

emotional support, people to talk to when I’m feeling alone, or

to get advice for when I need it."             He admitted that he knows he

has issues, but claimed that he feels as though the "criteria is

so stacked up against [him,]" and that he is "being punished

more because of [his] mental health problems [than] because of

[his] sex offending problem."

    P.W. submitted to the court a "realistic" discharge plan

that he believed would better suit his needs.                      He stated that

"even if [he] can’t be released to the streets," he wanted to be

"released to someplace which is less restrictive where they"

could help him transition back to the community.                         He told the

court that he "was supposed to get out when [he] was about 37"

and was only sentenced to five years, but "now [he has done]

over 16 years for [his offense]."

    In   an   oral       opinion     placed        on     the   record       after      the

presentation of the evidence, Judge O'Brien Kilgallen found by

clear and convincing evidence that P.W. "has been convicted of a

sexual   violent       offense,"     that     he        "suffers   from       a     mental

abnormality or personality disorder, namely pedophilia," that in

tandem affect him "cognitively, emotionally and volitionally,

which predisposes him to sexual violence" and causes him "to

                                       9                                          A-1056-17T5
have serious difficulty controlling sexually violent behavior."

The judge noted that the TPRC report found that P.W. should

remain     in     Phase       Three     of     treatment,      and    that     "he       is    an

individual        who     despite       his     time       exposed    to     sex     offender

treatment, his deviant sexual arousal remains strong, and he

chooses to continue to behaviorally reinforce this arousal at

times."

      Judge O'Brien Kilgallen rejected P.W.'s argument regarding

the   third      prong,       finding        that    he    offered    no   opposition           to

Harris's       expert     conclusion          that     P.W.   is     "highly       likely       to

sexually reoffend and is in need of confinement."                                  The court

concluded that P.W. should remain confined at the STU.                                   On the

same day, Judge O'Brien Kilgallen entered a memorializing order

continuing P.W.'s commitment and this appeal followed.

      On appeal,4 P.W. argues Judge O'Brien Kilgallen erred in

concluding       that     the    State        met    its    burden    of   proof.             P.W.

contends        that    the     judge        erred    in    finding    that        the    State

demonstrated that he is highly likely to reoffend because the

judge    did     not    take     into        consideration      "P.W.'s       limited          sex

offending history" or his treatment over the past decade.                                     P.W.

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-1056-17T5
relies on In re Civil Commitment of V.A., 357 N.J. Super. 55

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

whether    someone       "could   be      less      than   highly        likely    with    an

appropriate conditional discharge plan" before continuing their

commitment in "the most restrictive environment."                              He contends

that he "should be afforded the opportunity to participate in a

lesser    strict    environment        through       the     process      of   conditional

discharge."      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

likely to engage in acts of sexual violence if not confined in a



                                            11                                     A-1056-17T5
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.,

[pedophilia]).            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

court's determination either to commit or release an individual

                                             12                                      A-1056-17T5
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.                   The parties did

not   dispute,     and     the   record     amply    supports,    Judge     O'Brien

Kilgallen's finding that P.W. had been convicted of a sexually

violent    offense        and    suffers     from     pedophilia,      "a     mental

abnormality or personality disorder," satisfying the first two

predicates for continued commitment under the SVPA.                     See e.g.,

In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014); see

also R.F. 217 N.J. at 173.            Based on unrefuted credible expert

testimony, the judge's finding as to the third predicate that he

was   highly     likely    to    reoffend   was     supported    by   evidence      of

P.W.'s disorders, behavior and lack of treatment progress.                        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 (2001), was in all respects

correct.       Contrary to P.W.'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.



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