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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2295-16T5
                                                                A-4316-16T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF H.B.,
SVP-252-02.
____________________________

IN THE MATTER OF THE CIVIL
COMMITMENT OF B.L.,
SVP-463-07.
_____________________________

                Argued March 4, 2019 – Decided March 26, 2019

                Before Judges Messano, Fasciale and Rose.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Docket Nos. SVP-252-02 and
                SVP-463-07.

                Susan Remis Silver, Assistant Deputy Public Defender,
                argued the cause for appellant H.B. and B.L. (Joseph E.
                Krakora, Public Defender, attorney; Susan Remis
                Silver, on the briefs).

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

      In these back-to-back appeals, which we have consolidated for purposes

of this opinion, B.L. and H.B. appeal from orders continuing their involuntary

commitment to the Special Treatment Unit (STU) as sexually violent predators

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

We reject their primary contention that the State's experts rendered net opinions

and conclude that there exists sufficient credible evidence to support the judges'

findings. We therefore affirm.

                                        I.

      We begin with some general legal principles governing civil involuntary

commitments of sexually violent predators. Under the SVPA, the State may

petition the court for the involuntary commitment of an individual believed to

be a "sexually violent predator."       N.J.S.A. 30:4-27.28.     See also In re

Commitment of W.Z., 173 N.J. 109, 112 (2002). Under N.J.S.A. 30:4-27.26, a

"sexually violent predator" means

            a person who has been convicted, adjudicated
            delinquent or found not guilty by reason of insanity for
            commission of a sexually violent offense, or has been
            charged with a sexually violent offense but found to be
            incompetent to stand trial, and suffers from a mental
            abnormality or personality disorder that makes the
            person likely to engage in acts of sexual violence if not


                                                                          A-2295-16T5
                                        2
            confined in a secure facility for control, care and
            treatment.

            [(Emphasis added).]

A "mental abnormality" means "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." Ibid. And the phrase "[l]ikely to

engage in acts of sexual violence" means "the propensity of a person to commit

acts of sexual violence is of such a degree as to pose a threat to the health and

safety of others." Ibid.

      Clear and convincing proof is required for an involuntary commitment.

N.J.S.A. 30:4-27.32(a). On the requisite quantum of proof, the United States

Supreme Court rejected the notion that a sex offender must be unable to control

completely his dangerous sexual behavior. See Kansas v. Crane, 534 U.S. 407,

413 (2002). Instead, the Crane Court held that substantive due process required

some lack-of-control determination. Ibid. Mathematical precision to prove

inability to control behavior is not required. Rather, there must be proof of

"serious difficulty in controlling behavior." Ibid. An "absolutist" approach is

"unworkable" and risks "barring the civil commitment of highly dangerous [sex

offenders] suffering severe mental abnormalities." Id. at 411-12.



                                                                         A-2295-16T5
                                       3
      Rejecting bright-line rules to ensure constitutional safeguards of human

liberty when assessing mental illnesses, our Supreme Court noted that the State

must have "considerable leeway in defining the mental abnormalities and

personality disorders that make an individual eligible for confinement." W.Z.,

173 N.J. at 125 (quoting Crane, 534 U.S. at 413). Thus, "[a] finding of mental

abnormality that results in an impaired but not a total loss of ability to control

sexually dangerous behavior can be sufficient" to satisfy due process. Id. at 126.

A diagnosis of "sexual compulsion" is unnecessary if the State proves the

requisite "serious difficulty with control."    Id. at 129.    It is therefore the

"inability to control one's sexually violent behavior [that] is the very essence of

the SVPA." Ibid.

      After a person is involuntarily committed, the State must house that person

in a facility separate from other types of offenders and provide "treatment

tailored to address the specific needs of sexually violent predators." Id. at 120.

Under N.J.S.A. 30:4-27.35, such a person is entitled to annual court hearings to

assess whether continued commitment or conditional discharge is appropriate.

The burden of proof for continued commitment is by clear and convincing

evidence. N.J.S.A. 30:4-27.32(a). Conditional discharge is appropriate if the

court finds that


                                                                           A-2295-16T5
                                        4
            the person will not be likely to engage in acts of sexual
            violence because the person is amenable to and highly
            likely to comply with a plan to facilitate the person's
            adjustment and reintegration into the community so as
            to render involuntary commitment as a sexually violent
            predator unnecessary for that person[.]

            [N.J.S.A. 30:4-27.32(c)(1) (emphasis added).]

In such an instance, the court may order that the person be "conditionally

discharged in accordance with such plan." Ibid.

                                       II.

      In 1994, B.L. raped a fourteen-year-old girl. He pled guilty to second-

degree sexual assault, N.J.S.A. 2C:14-2(c), and received a five-year prison

sentence. In 1999, B.L. raped a seventeen-year old girl. He pled guilty to

second-degree sexual assault, N.J.S.A. 2C:14-2(c), and received a nine-year

prison term. 1 In 2007, the State petitioned the court to civilly commit B.L. as a

sexually violent predator under the SVPA, and in 2008 obtained an order

involuntarily committing him to the STU. Since then, either by stipulation or

by court order, B.L. has remained involuntarily committed. B.L. appeals from




1
  We affirmed the conviction. In re Civil Commitment of B.L., No. A-4036-07
(App. Div. Jan. 4, 2010). As part of the negotiated plea agreement, the State
dismissed separate charges that B.L. had raped another victim, a thirteen-year-
old girl, also in 1999.
                                                                          A-2295-16T5
                                        5
a May 3, 2017 order, which continued his commitment to the STU after the last

hearing.

      It is undisputed that B.L. has been convicted of sexually violent crimes

under the SVPA. The questions at his commitment hearing were whether B.L.

suffered from a mental abnormality or personality disorder, and as a result,

whether it was highly likely that he would be unable to control his sexually

violent behavior and would re-offend. He argues primarily that the judge relied

on net opinions from the State's two experts, which he contends were not based

on any methodology or objective standards, and that the State produced

insufficient evidence to warrant continued commitment.

      The judge qualified the State's first witness, Dr. Roger Harris, without

objection, as an expert psychiatrist. Before rendering his expert report, the

doctor interviewed B.L. (and had previously interviewed him in 2014); and he

reviewed and relied upon clinical certificates, reports from the treatment

progress review committee (TPRC), prior forensic evaluations, treatment notes,

and previous statements made by B.L. In addition, the doctor performed the

Static-99 actuarial test to help him estimate the probability of B.L.'s sexually

violent recidivism. And he considered B.L.'s offense history, various dynamic

factors, personality characteristics, and lack of treatment progress.


                                                                        A-2295-16T5
                                        6
      Based on the interviews, his review of the documentation, and his own

testing, Dr. Harris diagnosed B.L. with "[s]exual [s]adism [d]isorder"; "[o]ther

[s]pecified [p]araphilic [d]isorder, teenage girls"; "[a]ntisocial [p]ersonality

[d]isorder [(ASPD)]"; "[a]lcohol, [c]annabis and [s]timulant [u]se [d]isorders,

in a controlled setting."     The doctor said that these disorders do not

"spontaneously remit," but rather, they require treatment where one can learn

how to control impulses caused by the psychiatric disorders.         Dr. Harris

determined that B.L. was unable to control his impulses.

      He testified that B.L.'s fundamental core issue was his lack of "self-

regulation," which includes his inability to control his sexual drive and anger.

The doctor believed that B.L.'s anger interfered with B.L.'s treatment. Such a

belief was critical to B.L.'s continued problem controlling his violent sexual

drive. At his 2017 interview, B.L. refused to discuss his past offenses, which

led the doctor to conclude B.L. attempted to control the interview. The STU

treatment records reflect his difficulty relating to others, his attempt to

intimidate others, and his verbal altercations, which impeded his treatment

progress. The records also demonstrated that B.L. remained challenging and

difficult towards those who treated him. In Dr. Harris's opinion, B.L. remained

vulnerable, irritable, aggressive, and unable to self-regulate, even in the


                                                                        A-2295-16T5
                                       7
controlled setting of his 2017 interview, which B.L. eventually terminated on

his own.

      Dr. Harris concluded that B.L. would be highly likely to re-offend

sexually if released from the STU. He reached that conclusion after performing

a structured risk assessment, which the doctor explained was a well-established

standard approach for experts assessing risk.       He testified that numerous

research books show how to perform these assessments and that the method is

rigorous.

      B.L. scored a five on the Static-99 test. Dr. Harris explained that such a

score placed him in the "category of men who were above average risk to

sexually re-offend." But the doctor did not rely solely on this test score. He

explained that the score by itself did not fully estimate B.L.'s risk to re-offend

sexually because it did not consider other relevant risk factors, such as deviant

arousal from multiple paraphilias, strong antisocial attitudes and behaviors, past

violations of conditions of release, poor self-regulation, an impulsive lifestyle,

poor cognitive problem-solving skills, and a history of sexual violence. Dr.

Harris testified that he considered other dynamic factors that the literature

identifies as empirically validated.




                                                                          A-2295-16T5
                                        8
      The State's second witness, Dr. Eugene Dunaev, is a psychologist. Like

Dr. Harris, the judge admitted him as an expert without objection. In rendering

his opinion, Dr. Dunaev considered his interview and treatment of B.L., and he

reviewed and relied upon prior reports, various documentation, the Static-99R

(which is a modified Static-99), and the Stable 2007, which is a risk-assessment

tool that considers thirteen stable dynamic risk factors associated with sexual

recidivism. Like B.L.'s treatment team, Dr. Dunaev recommended that B.L.

continue in Phase 3A of his treatment, which is the beginning half of the core

phase of treatment.

      Dr. Dunaev also considered B.L.'s sexual offense history.       He found

significant B.L.'s sadistic themes, such as arousal from the victim's pain and

crying. The doctor also reviewed B.L.'s treatment trajectory, which according

to him, vacillated greatly. In the doctor's view, B.L. would show signs of doing

well, but then would sabotage himself with anger and substance abuse. Like Dr.

Harris, Dr. Dunaev concluded B.L. was not fully engaging in treatment. He

gave several examples, including that B.L. failed to complete a written relapse

prevention plan, and he did not complete personal maintenance or substance

abuse contracts.




                                                                        A-2295-16T5
                                       9
      Dr. Dunaev diagnosed B.L. with "[s]exual [s]adism"; "[o]ther [s]pecified

[p]araphilic [d]isorder (non-consent and hebephilia, provisional)"; marijuana,

alcohol, and cocaine use disorder, in a controlled environment; "[a]ntisocial

[p]ersonality   [d]isorder   (with   borderline   features)";   and   "[b]orderline

[i]ntellectual [f]unctioning." Dr. Dunaev also concluded that B.L. failed to

address his continued anger problem. The doctor stated that B.L. scored a four

on the Static-99R test, which placed him in the above average category of sexual

re-offense. And on the Stable 2007, he scored a sixteen out of twenty-four,

which falls into the high level of people likely to re-offend. He also scored

twenty-eight (indicating a high range of psychopathic traits) on a PCL-R test,

which is a psychological assessment tool used to assess the presence of

psychopathy in individuals.

       Dr. Barry Zakireh, a psychologist and B.L.'s expert witness, diagnosed

B.L. with other specified paraphilic disorder with features of sexual sadism,

ASPD, and several substance abuse disorders. The doctor believed that these

diagnoses should be treated more like dynamic risk factors, rather than persistent

ones. But he agreed that the paraphilic disorder predisposed B.L. to re-offending

sexually. Nevertheless, he concluded that B.L. is "less than likely" to re-offend

sexually if released with conditions.


                                                                           A-2295-16T5
                                        10
      The judge found by clear and convincing evidence that B.L. suffers from

disorders with sexual sadism traits that were "not going to go away." Although

the judge acknowledged that B.L. had shown some positive treatment effects,

particularly in the months before the 2017 review hearing, the judge still found

that B.L. remained unable to control his sexually violent behavior rendering him

highly likely to re-offend sexually. The judge found all of the experts credible,

but did not agree with Dr. Zakireh's opinion regarding B.L.'s likelihood of re-

offending. Moreover, the judge found that B.L. demonstrated sadistic traits and

a total disregard for his victims; and that his mental conditions continue to affect

him emotionally, cognitively, and volitionally.         Consequently, the judge

concluded that B.L. would have serious difficulties controlling his sexually

violent behavior thereby rendering him highly likely to re-offend sexually.

Although the judge had accelerated B.L.'s next commitment hearing (seven

months away, instead of the usual one-year period), B.L. canceled it pending

adjudication of this appeal.

                                        III.

      Between 1987 and 1988, H.B. raped his nine-year-old daughter at least six

times. He pled guilty, in 1989, to second-degree sexual assault, N.J.S.A. 2C:14-

2(a)(1); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4.


                                                                            A-2295-16T5
                                        11
He received an aggregate five-year prison term. H.B. also admitted to raping

three or four other victims, for which he was never charged. In 1993, H.B. raped

a woman whom he was in a romantic relationship with. For that incident, he

pled guilty to three counts of sexual assault, N.J.S.A. 2C:14-2(c)(1); and

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). As to the

weapons offense, he had used a knife while he sexually assaulted her. For the

1993 convictions, he received an aggregate ten-year prison term with five years

of parole ineligibility. While imprisoned, he received at least six institutional

charges, including assault on a police officer.

      In 2001, H.B. was involuntarily committed to the STU. But he was then

transferred to administrative segregation at East Jersey State Prison for

assaulting an officer. Thereafter, he received another charge for assaulting an

officer.   H.B. has had a history of incarcerations followed by involuntary

commitments.2 He has had multiple commitment hearings under the SVPA, and

he has remained confined to the STU. Now, H.B. appeals from a December 20,

2016 order, which continued his involuntary commitment to the STU after the

last hearing.



2
  We affirmed an April 2, 2012 order continuing his involuntary commitment.
In re Civil Commitment of H.B., No. A-6154-11 (App. Div. Nov. 13, 2012).
                                                                         A-2295-16T5
                                       12
      It is undisputed that H.B. has been convicted of sexually violent crimes

under the SVPA. The questions at his commitment hearing were whether H.B.

suffered from a mental abnormality or personality disorder, and as a result,

whether it was highly likely that he would be unable to control his sexually

violent behavior and would re-offend. He argues primarily, like B.L., that the

judge relied on net opinions from the State's two experts, which he also contends

were not based on any methodology or objective standards, and that the State

produced insufficient evidence to warrant continued commitment.

      The judge qualified the first witness, Dr. Roger Harris, as a psychiatrist.

He examined H.B., reviewed a multitude of documentation customarily relied

on by similar experts performing risk assessments, and then arrived at his own

diagnosis and conclusions. The doctor diagnosed him with pedophilic disorder

(incest); paraphilic disorder (coercion); multiple substance abuse disorders;

recurrent major depressive disorder; and a personality disorder with antisocial

features.

      Dr. Harris opined that these disorders predisposed H.B. to committing

sexually violent offenses. They have affected him emotionally and cognitively,

and have caused volitional deficits. He has a history of poor self-regulation and

engaging in self-harm, such as cutting his anus and inserting a bottle into his


                                                                         A-2295-16T5
                                      13
rectum. H.B. told the doctor that he still fantasizes about his daughter, which

led Dr. Harris to conclude that H.B.'s arousal to children remains a risk. H.B.'s

personality disorder manifested itself in poor problem-solving skills,

impulsivity, and recklessness.

      H.B. scored a two on the Static-99R test. Dr. Harris concluded that this

score underestimated H.B.'s risk. The doctor utilized the test as one factor

among many in his evaluations. Although Dr. Harris has used the actuarial tool

because it is part of accepted standard practices in his field, he stated that the

test is limited in its ability to measure an individual's risk to re-offend. For

example, it does not include dynamic or protective factors that may affect risk

assessment.

      The doctor considered the presence of other risk factors, which

empirically have been shown to increase risk of sexual re-offending.            He

explained that H.B. has comorbid paraphilias, which empirically demonstrate an

increase risk of re-offending. And H.B.'s substance abuse disorders increase the

risk of re-offending because substance abuse plays a role in H.B.'s offending

dynamics and further compromises his ability to self-regulate. Dr. Harris stated

that his risk assessments also include his clinical judgment.




                                                                          A-2295-16T5
                                       14
       The judge qualified the State's second witness, Dr. Christine Zavalis, as a

psychologist. The TPRC gave H.B. multiple opportunities to interview, but he

declined. Dr. Zavalis evaluated H.B. as part of the TPRC's annual review, but

because he would not appear for interviews, she did so based on documentary

evidence, which comprised those documents customarily relied on by experts in

her field.

       Dr. Zavalis diagnosed H.B. with other specified paraphilic disorder (non-

consent); other specified personality disorder with antisocial and schizoid traits;

intermittent explosive disorder; several substance abuse disorders; and post-

traumatic stress disorder (PTSD). Additionally, she provisionally diagnosed

him with pedophilic disorder and sexual sadism disorder because she had

sufficient information to suggest these disorders and not enough to rule them

out.   Dr. Zavalis testified that H.B.'s paraphilic and personality disorders

predisposed him to re-offend.

       H.B. scored a three on the Static-99, which placed him in a category of

offenders who sexually re-offend at an average rate. Although he showed some

signs of improvement on other dynamic risk factors, Dr. Zavalis identified signs

of negative emotionality, anger, paranoia, and depression, for which he was

medicated. Dr. Zavalis said that according to the Static-99 manual, evaluators


                                                                           A-2295-16T5
                                       15
must consider information outside that test to perform a full assessment of risk.

Dr. Zavalis described this as a "clinically adjusted actuarial approach" to risk

assessment.

      H.B. has been in Phase 3A treatment, which is the core phase of treatment.

Although H.B. had showed some signs of improvement, he still had incidents of

lashing out verbally. Dr. Zavalis emphasized that H.B. needed greater insight

into his arousal. She stated that H.B. must spend time in the Therapeutic

Community, which includes intense scrutiny and responsibility, before he is

released from the STU. Dr. Zavalis opined that H.B. was highly likely to re-

offend sexually. She based that opinion on risk factors—from the Static-99 and

the Stable-2007—and other factors not mentioned in those measures, such as

medical mitigation and treatment effect.

      Finally, Dr. Gianni Pirelli, a psychologist, testified for H.B.           He

interviewed H.B. and diagnosed him with paraphilic disorder for non -consent

("not active"); a mood disorder (that might be bipolar disorder); and a history of

substance abuse disorders. Dr. Pirelli does not use the Static-99, and places no

significance on the PCL-R assessment tool. But as to the PCL-R, he admitted

that it addresses antisocial traits, which are a risk factor, especially when

combined with a paraphilic arousal. He concluded "there's probably [not] much


                                                                          A-2295-16T5
                                       16
disagreement between me and the treatment team and Dr. Zavalis other than the

fact that I think we just need to be much more refined and focused" by giving

H.B. tasks in his treatment. And he testified that H.B. should remain at the STU

for at least nine additional months.

      The judge found by clear and convincing evidence that H.B. had been

convicted of sexually violent offenses, he suffers from mental abnormalities and

a personality disorder that predispose him to commit sexually violent offenses,

and that he is highly likely to engage in future acts of sexual violence if not

confined to the STU. In rendering his opinion, the judge remarked that none of

the experts was required to predict the future, only to give his or her best

estimates about an individual's risk.

                                        IV.

      On appeal, B.L. raises the following arguments:

            POINT I

            B.L.'S COMMITMENT IS IMPROPERLY BASED
            ON THE STATE EXPERTS' INADMISSIBLE NET
            OPINION.

                   A. Neither State Expert Could Provide Any
                   Probability Basis for Finding that B.L. Is
                   "Highly Likely" to Re[-]offend.




                                                                        A-2295-16T5
                                        17
B. The Static-99 Risk Assessment Tool
Demonstrated B.L.'s Risk of Sexually
Re[-]offending Was Below [Fifty Percent].

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

D. The Hanson and Mann Article
Demonstrates that Empirical Data Does
Not Support Using the State's List of
Dynamic Risk Factors to Adjust Upward
B.L.'s Risk of Re[-]offending.

E. Both State Experts Ignored Base Rate
Data that Was Relevant to Determine
B.L.'s Risk of Re[-]offending.

F. The State Experts Failed to Correlate
B.L.'s PCL-R Score with Finding He Was
Highly Likely to Re[-]offend.

G. The State Experts Failed to Correlate
Any STABLE-2007 Score with Finding
B.L. Highly Likely to Re[-]offend.

H. Both State Experts Based Their Risk
Assessment     on     "Facts"    They
Acknowledged Were Inaccurate or
Outdated.

I. Dr. Zakireh, B.L.'s Expert, Was the Only
Witness Who Used Empirically Validated
Risk Assessment.




                                              A-2295-16T5
                   18
          POINT II

          REVERSAL IS REQUIRED BECAUSE THE STATE
          INTRODUCED NO EVIDENCE THAT B.L. HAS A
          CURRENT    MENTAL     ABNORMALITY   OR
          PERSONALITY DISORDER THAT MAKES HIM A
          CURRENT RISK OF BEING HIGHLY LIKELY TO
          SEXUALLY RE[-]OFFEND.

     On appeal, H.B. makes the following arguments, which we have

renumbered:

          POINT III

          THE STATE EXPERTS' TESTIMONY LACKED AN
          EMPIRICAL   BASIS    AND   CONSTITUTED
          INADMISSIBLE NET OPINION.

               A. The State Experts Could Not Define
               What They Meant When They Said H.B.
               Was     Highly  Likely   to  Sexually
               Re[-]offend.

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

               C. The State Experts Used No Objective
               Peer-reviewed Guidelines to Reach Their
               Conclusion.

               D. Both State Experts Ignored Base Rate
               Data that Was Relevant to Determine
               H.B.'s Risk of Re[-]offending.




                                                           A-2295-16T5
                                19
    E. The State Experts Failed to Correlate
    H.B.'s Static-99 Score with Finding That
    He Is Highly Likely to Re[-]offend.

    F. The State Experts Failed to Correlate
    H.B.'s PCL-R Score with Finding He Was
    Highly Likely to Re[-]offend.

    G. The State Experts Failed to Correlate
    Any Stable-2000 Score with Finding H.B.
    [Was] Highly Likely to Re[-]offend.

POINT IV

THIS   COURT    MUST    REVERSE   H.B.'S
COMMITMENT ORDER SINCE IT WAS BASED ON
STATE EXPERTS' TESTIMONY THAT FAILS TO
MEET ADMISSIBILITY REQUIREMENTS OF NEW
JERSEY EVIDENCE RULE 702.

POINT V

THE TRIAL COURT'S DECISION TO COMMIT H.B.
WAS BASED ON "FACTS" UNSUPPORTED BY
THE RECORD.

    A. The Trial Court Erred in Finding that
    Dr. Pirelli Concluded that H.B. Is "Highly
    Likely" to Re[-]offend.

    B. The Trial Court Falsely Assumed that
    Dr. Pirelli Found That H.[B]. Was Clearly
    Predisposed to Sexual Violence.

    C. The Trial Court Falsely Assumed that
    H.B. Had No Family History of Incest and
    Improperly Dismissed Dr. Pirelli's
    Rejection of a Pedophilia Diagnosis.

                                                 A-2295-16T5
                       20
                    D. The Trial Court Falsely Assumed that
                    H.B. Engaged in Multiple Sexual Assaults
                    Against His Daughter, Including Physical
                    Force, Threats and Penetration.

                    E. The Trial Court Mischaracterized Dr.
                    Zavalis on the Predictability of Her
                    Methodology.

                    F. The Trial Court Erred in Concluding that
                    H.B. Has Been in Sex Offender Treatment
                    for Only [Three to Four] Years.

             POINT VI

             REVERSAL IS REQUIRED BECAUSE THE STATE
             INTRODUCED NO EVIDENCE THAT H.B. HAS A
             CURRENT    MENTAL     ABNORMALITY   OR
             PERSONALITY DISORDER THAT MAKES HIM A
             CURRENT RISK OF BEING HIGHLY LIKELY TO
             SEXUALLY RE[-]OFFEND.

                                          V.

      "The scope of appellate review of a commitment determination is

extremely narrow." In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014)

(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)). Where a trial judge's findings are supported by



                                                                                A-2295-16T5
                                          21
sufficient credible evidence in the record, they should not be disturbed. Id. at

175.

       In commitment hearings, the judge makes the final determination about

whether an individual is highly likely to re-offend sexually. Id. at 174. That is

because courts must balance "society's interest in protection from harmful

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

The ultimate determination is a legal one, not a medical one. Ibid.

       Moreover, we give deference to findings by 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)). We will not overturn a trial court's findings even if we "might

have reached a different conclusion were [we] the trial tribunal" or because "the

trial court decided all evidence or inference conflicts in favor of one side" in a

close case. Id. at 175 (quoting Johnson, 42 N.J. at 162). Therefore, we should

not change a trial judge's determination to commit or release an individual unless

"the record reveals a clear mistake." Ibid.

                                       VI.

       We now address the contentions that the State's experts rendered net

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


                                                                          A-2295-16T5
                                       22
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)).

Such a rule bars admission of an "expert's conclusions that are not supported by

factual evidence or other data." Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)

(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). Instead, it requires

an expert to provide the "why and wherefore" that supports his or her opinion.

Id. at 54. Therefore, an expert must provide the factual basis and analysis that

support the opinion. 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).

                                       (1)

      As to the expert testimony in B.L.'s hearing, B.L.'s counsel never argued

that Dr. Dunaev rendered net opinions and counsel did not object at the hearing

to Dr. Harris rendering net opinions. But on a limited remand to reconstruct part

of the record, B.L.'s counsel moved for the first time to strike only the testimony

of Dr. Harris along those lines, which the judge denied. We conclude that the

judge did not abuse his discretion by admitting the expert opinion testimony




                                                                           A-2295-16T5
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from Dr. Harris, and that there is no plain error as to Dr. Dunaev. We reach

these conclusions because Drs. Harris and Dunaev did not render net opinions.

      Drs. Harris and Dunaev provided the judge with the "why and wherefore"

of their opinions, each detailing the factual basis supporting their independent

opinions that B.L. would be highly likely to re-offend if released at this point in

his treatment. The doctors reviewed in detail B.L.'s history of sexual violence,

treatment history, diagnosis, and a multitude of other factors. They interviewed

B.L., utilized actuarial or analytical tools—Dr. Harris the Static-99, and Dr.

Dunaev the Static-99R and the Stable 2007. They diagnosed B.L. with specific

disorders that predisposed him to committing acts of sexual violence, and

explained which facts indicated that B.L. continued to have serious difficulty

controlling the harmful behavior stemming from these disorders, despite some

recent progress in treatment. Thus, neither Dr. Harris nor Dr. Dunaev gave mere

unsubstantiated conclusions that would contravene the net opinion rule.

      B.L. essentially contends that the doctors should have analyzed the

available information in the same way that Dr. Zakireh did, and that they should

have come to the same conclusion as Dr. Zakireh. But "[t]he failure of an expert

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


                                                                           A-2295-16T5
                                       24
reasons which logically support his opinion." Rosenberg v. Tavorath, 352 N.J.

Super. 385, 402 (App. Div. 2002). If an expert provides a sufficient factual basis

for an opinion but fails to consider other significant facts or data, that is a proper

topic for cross-examination, but it does not provide grounds to bar the opinion

as a net opinion. Ibid.

                                         (2)

      At H.B.'s hearing, his counsel did not object to the testimony from Drs.

Harris and Zavalis. But in his closing statement to the judge, counsel argued

that their testimony should not be credited and they "should be entirely rejected

as inadmissible net opinion[s]." Counsel contended that "[a]bsent empirical

testable information, the State [was] using its unguided clinical judgment in

making a risk prediction." We see no plain error because the doctors' testimony

did not amount to net opinions.

      Drs. Harris and Zavalis provided the judge with the "why and wherefore"

of their opinions, each detailing the factual basis supporting their independent

opinions that H.B. would be highly likely to re-offend if released without

showing more progress in treatment. They reviewed H.B.'s history of offending,

treatment history, present diagnosis, and present progress in treatment. Dr.

Harris personally interviewed H.B., and Dr. Zavalis would have done so but for


                                                                              A-2295-16T5
                                         25
H.B.'s refusal. Each used the Static-99 as an actuarial tool, and separately

diagnosed H.B. with disorders that predisposed him to committing acts of sexual

violence, and they explained which facts indicated that H.B. continued to have

serious difficulty in controlling his behavior stemming from these disorders,

despite some recent progress in treatment.

                                        (3)

      We reject any suggestion that the State's experts rendered net opinions in

both appeals because—as counsel for B.L. and H.B. contends—the experts

failed to provide any probability basis for their conclusions, failed to correlate

actuarial data and test scores, ignored base rate data, used inaccurate or outdated

facts, and did not use the same methodology as Dr. Zakireh. B.L. and H.B.

essentially argue that the State's experts provided opinion testimony that used

unacceptable methodology. 3


3
   We received a letter dated February 19, 2019 from counsel for the State
drawing our attention, under Rule 2:6-11(d), to our decision in In re
Commitment of A.Y., ___ N.J. ___ (App. Div. 2019). In her letter, counsel
stated that in that case we addressed the Court's recent decision in In re Accutane
Litigation, 234 N.J. 340 (2018) and that we concluded that actuarial instruments
are an accepted factor, which may be considered in assessing risk of re-
offending sexually. At oral argument before us, counsel for B.L. and H.B.
contended for the first time that the methodology used by the State's experts
failed to satisfy Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Inasmuch as there was no objection to the testimony from the State's experts


                                                                           A-2295-16T5
                                       26
      As we indicated in the beginning of our opinion, the State need not prove

inability to control behavior with "mathematical precision." See Crane, 534

U.S. at 413. The Court declined to impose a precise standard to measure the

requisite "lack of control" stating "there must be proof of serious difficulty in

controlling behavior." Ibid. Contrary to B.L. and H.B.'s contentions, under the

net opinion rule, experts are not required to organize or support their opinions

in a specific manner "that opposing counsel deems preferable." Townsend, 221

N.J. at 54.

      Dr. Pirelli testified that "[w]e can't predict future sexual [re-]offending

. . . with any real accuracy." He acknowledged that he defers to the judge as to

the legal question of whether an individual is "highly likely" to re-offend. And

on that question, established case law has addressed the reliability of actuarial

tests. For example, we previously recognized that the Static-99 was designed to

"predict long-range risk for sexual recidivism by combining two well

standardized risk assessment scales." In re J.P., 339 N.J. Super. 443, 451 (App.

Div. 2001). And the Static-99 is a recognized "actuarial test used to estimate




during the hearings, and there was no mention of Daubert to the judge, we
decline to address that decision here. Instead, we rely on the long-standing
precedent in SVPA cases as to the acceptability of the methodology used by the
State's experts.
                                                                         A-2295-16T5
                                      27
the probability of sexually violent recidivism." R.F., 217 N.J. at 164 n.9. We

have acknowledged that 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." In re Registrant, C.A.,

146 N.J. 71, 106 (1996). Scientific literature and expertise accords weighing

risk factors, which the Court has said is an acceptable method of predicting

future criminal sexual behavior. Id. at 105. Furthermore, actuarial instruments

are "generally accepted by professionals who assess sex offenders for risks of

re[-]offense." In re Commitment of R.S., 339 N.J. Super. 507, 538 (App. Div.

2001). Use of the instruments has been accepted in at least six other states. Id.

at 548. Finally, we concluded that actuarial instruments satisfy Frye.4 Actuarial

information is "simply a factor to consider, weigh, or even reject, when engaging

in the necessary fact[-]finding under the SVPA." R.F., 217 N.J. at 164 n.9

(quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). As we explained

in R.S.,

              [s]ince   expert    testimony    concerning        future
              dangerousness based on clinical judgment alone has
              been found sufficiently reliable for admission into
              evidence at criminal trials, we find it logical that
              testimony based upon a combination of clinical
              judgment and actuarial instruments is also reliable. Not

4
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
                                                                          A-2295-16T5
                                        28
            only does actuarial evidence provide the court with
            additional relevant information, in the view of some, it
            may even provide a more reliable prediction of
            recidivism.

            [339 N.J. Super. at 537-38.]

      To the extent that we have not addressed the arguments raised by B.L. and

H.B., we conclude that they are without sufficient merit to warrant attention in

this opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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