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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4826-16T5


IN THE MATTER OF THE CIVIL
COMMITMENT OF H.E., SVP-518-08.
________________________________

           Argued March 22, 2018 – Decided June 7, 2018

           Before Judges Rothstadt and Gooden Brown.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. SVP-
           518-08.

           Joan Van Pelt, Designated Counsel, argued the
           cause for appellant H.E. (Joseph E. Krakora,
           Public Defender, attorney).

           Cindi Collins, Assistant Attorney General,
           argued the cause for respondent State of New
           Jersey (Gurbir S. Grewal, Attorney General,
           attorney).

PER CURIAM

     H.E. appeals from the June 14, 2017 order of the Law Division,

continuing his commitment to the Special Treatment Unit (STU), the

secure facility designated for the custody, care and treatment of

sexually   violent    predators     pursuant    to   the   Sexually    Violent
Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.                     For the

reasons that follow, we affirm.

     We need not recount H.E.'s prior criminal history or events

since his original admission to the STU in 2009.                       They are

recounted at length in our prior opinions, In re Civil Commitment

of H.E., No. A-5298-08 (App. Div. Feb. 8, 2012), In re Civil

Commitment of H.E., No. A-2826-13 (App. Div. Dec. 2, 2014), and

In re Civil Commitment of H.E., No. A-2412-15 (App. Div. June 8,

2016).    Suffice it to say that H.E. has an extensive criminal

history consisting of non-sexual and sexual offenses.                     H.E.'s

predicate convictions arose out of his 1999 guilty pleas to

aggravated      sexual   assault    upon        a   fifteen-year-old      female

acquaintance and aggravated criminal sexual contact upon a twenty-

four-year-old stranger, for which he was sentenced to a twelve-

year custodial term, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2.      He was committed to the STU under the SVPA after

serving   his   sentence,   and    his       commitment   has   been   continued

following periodic review hearings.

     The most recent review, which is the subject of this appeal,

was conducted by Judge Philip M. Freedman on May 12 and 22, 2017.

At the hearing, the State relied on the expert testimony of

psychiatrist Roger Harris, M.D., and psychologist Nicole Paolillo,

Psy. D., a member of the STU's Treatment Progress Review Committee

                                         2                               A-4826-16T5
(TPRC), both of whom agreed on H.E.'s diagnosis and opined that

his risk to sexually reoffend remained high.                 H.E. relied on the

expert testimony of psychologist Gianni Pirelli, Ph. D., who agreed

with the diagnosis of the State's experts but disagreed that H.E.'s

risk to sexually reoffend was high.               After interviewing H.E. and

reviewing previous psychiatric evaluations, STU treatment records,

and related documents, Harris and Pirelli prepared reports, which

were admitted into evidence.           Although Paolillo did not author the

TPRC    report,    which      was   also       admitted   into     evidence,    she

participated      in   the   review,    which     included     interviewing    H.E.

Various treatment notes and other records were also admitted into

evidence.

       Dr. Harris concluded that H.E., born February 1, 1975, met

the criteria of a sexually violent predator and was "highly likely

to sexually reoffend if placed in a less restrictive setting"

because he has not mitigated his risk.               Based on H.E.'s "pervasive

pattern for the disregard and the violation of others," his failure

"to conform to social norms" resulting in repeated arrests, his

"impulsive[ness,]"             "irritability[,]"             "aggressiveness[,]"

"reckless disregard for the safety of others[,]" "lack of remorse,"

"rationalizing"        and   "indifference      to   hurting     others[,]"     Dr.

Harris diagnosed H.E. with antisocial personality disorder.                     Dr.



                                           3                              A-4826-16T5
Harris   also   gave    H.E.   a     score    of   five   on   the    Static-99R,1

indicating an above average risk to sexually reoffend.                   However,

Dr. Harris testified that "[t]his does not include dynamic or

psychological    factors,      and   it   doesn't    include    his    sexualized

violence, his history of impulsivity, his childhood behavioral

problems and his antisocial attitudes and behaviors . . . ."

     Dr. Harris also found evidence of "conduct disorder" with

onset before age fifteen based partly on H.E.'s adjudication of

delinquency for sexual assault in 1991 for "switching partners"

without consent.       H.E. reported that the probationary disposition

he received for the offense did not deter him because "he was

selling drugs, stealing cars, running the streets, not taking

responsibility . . . ."        According to Dr. Harris, "when you offend

as a juvenile, and also offend as an adult, . . . you have a

greater risk to sexually reoffend in the future . . . ."                        Dr.

Harris also found significance in the fact that the predicate

offenses were one month apart, that the second victim was a



1
    "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 Civil
Commitment of R.F., 217 N.J. 152, 164 n.9 (2014). 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)).


                                          4                                A-4826-16T5
stranger to H.E., and that there was an "escalation of violence

overall . . . ."   According to Dr. Harris, these factors increased

H.E.'s risk of sexually reoffending and suggested that H.E. was

"having greater difficulty inhibiting and controlling his sexually

aggressive drive . . . ."           In addition, because H.E. reported

having "consensual sexual partners during this time, . . . clearly

that was not sufficient for his sexual gratification."

      Dr. Harris also diagnosed H.E. with alcohol and cannabis use

disorders, based on his history of alcohol use beginning at age

thirteen and marijuana use beginning at age sixteen.          Dr. Harris

explained that "the use of alcohol or cannabis can lower one's

threshold to act impulsively, to lack control of one's aggression

and sexual drive, so it puts one at greater risk to reoffend."

      Dr. Harris found H.E.'s intelligence to be within the average

or slightly lower than average range.            However, Dr. Paolillo

testified that although testing "placed him in a borderline range

of intellectual functioning[,]" H.E. did not "present as a low

functioning individual based on his cognitive skills[,]" and she

saw   no   indication   that   he    struggled   with   communicating    or

understanding.

      Dr. Harris described H.E. as an "active participant" in

treatment and Dr. Paolillo opined that H.E.             "has received a

mitigating therapeutic experience" just by virtue of his exposure

                                      5                           A-4826-16T5
to treatment.      Since 2012, H.E. has been in Phase 3A of treatment,

which     Dr.    Paolillo     characterized      as     "the      core     phase    of

treatment[,]" but he had been rejected by the                       more advanced

Therapeutic Community (T.C.) multiple times, reportedly because

he denied culpability of his predicate offenses.                  According to Dr.

Harris, while "denial of th[ese] kind[s] of aggressive sexual

offenses does not appear to predict risk in the future[,]" by

virtue of his denials, H.E. was "denying himself an opportunity

to flesh out both his sexual offense cycle . . . to establish

[relapse       prevention]   skills   that      address     the    nature    of    his

aggression towards women, his violence, [and] his strong sexual

drive."

       In addition, Dr. Harris noted that H.E. was placed on MAP

this    past    year   for   having   a   USB   in    his   possession      and    for

threatening a woman on the telephone, an accusation he denied.

H.E. was also placed in the T.C.C.2 when he was in a physical

altercation with another resident and claimed he was assaulted by

the resident although he had no "conflict with the individual."

Dr. Harris pointed out that these incidents evidenced a pattern

of H.E. "disowning" and not taking responsibility for his own

aggression,      and   "trying   to   essentially      sanitize      the    record."


2
    Dr. Harris and Dr. Paolillo explained that the T.C.C. is
"basically an area for him to be isolated" for his protection.

                                          6                                  A-4826-16T5
According to Dr. Harris, "[d]isowning the level of aggression that

he engages in is at odds with . . . how one mitigates risk to

sexually reoffend" and "has short circuited [H.E.'s] ability to

move forward in treatment . . . ."

     Although Dr. Pirelli agreed that H.E.'s diagnoses were part

of his offending, and predisposed him to sexually reoffend at some

point   in    time,   he   opined      that   they   have    been    "mitigated

significantly" and no longer impaired his volitional capacity to

control himself.       According to Dr. Pirelli, while antisocial

personality    disorder    is    not    "curable[,]"     H.E.'s     "antisocial

personality disorder related risks have decreased" for "a variety

of reasons[,]" including H.E.'s age and environmental factors,

such as H.E. having a fiancé and adult children.               To support his

opinion, Dr. Pirelli administered the Risk for Sexual Violence

Protocol (RSVP), "a structured professional judgment" measure,

which included "[twenty-two] empirically supported sexual violence

risk factors across five domains[,]" consisting of sexual violence

history,     psychological      adjustment,     mental      disorder,    social

adjustment, and manageability.3


3
   Dr. Harris disagreed with Dr. Pirelli's RSVP scoring of H.E.
For example, according to Dr. Harris, Dr. Pirelli did not account
for H.E.'s high score of twenty-six on the PCL-R or the psychopathy
checklist revised, which provided a dimensional score that
represented the extent to which an individual matched the


                                        7                               A-4826-16T5
      Dr. Pirelli testified that although H.E. denied his predicate

offenses,   his    assessment      of    H.E.   encompassed    both    offenses,

despite the fact that Dr. Pirelli questioned the reliability of

the second victim's identification of H.E. as her assailant and

Dr.   Pirelli     referred   to    the    first   conviction      as   the     only

"compelling adult offense."         To further support his opinion, Dr.

Pirelli   pointed    to   H.E.'s    most     recent   treatment    plan,     which

reported either moderate or good progress in six out of seven

areas. Dr. Pirelli concluded that H.E. was sufficiently in control

of his behavior to be discharged with an appropriate structured

discharge plan.

      In an oral opinion rendered on June 14, 2017, Judge Freedman

found by clear and convincing evidence that H.E. "has, in fact,

committed sexually violent offenses which bring him within the

purview of the statute[;]" that he "suffer[s] from a personality

disorder, antisocial personality disorder, and an alcohol and drug

use disorder," that in tandem affect him emotionally, cognitively,



prototypical psychopath.    The higher the score, the closer the
match, and presumably the greater the confidence that the
individual is a psychopath. An individual receiving a score of
thirty or above met the diagnostic criteria for psychopathy. Dr.
Harris believed that while H.E.'s score did not meet the diagnostic
criteria for a psychopath, it indicated psychopathic traits
consistent with his antisocial personality disorder diagnosis.
Dr. Harris also disagreed with Dr. Pirelli's premise that there
was no diversity or escalation in H.E.'s sexual offending history.

                                         8                                 A-4826-16T5
and volitionally, and "clearly . . . predispose him to engage in

acts of sexual violence[;]" and that if "released he would have

serious difficulty controlling his sexually violent behavior and

would be highly likely in the reasonably foreseeable future to

engage in acts of sexual violence."

     After    articulating     the       applicable   legal      principles,

recounting the testimony of all three experts, and detailing H.E.'s

treatment record at the STU, the judge observed "[t]his case is

primarily one of treatment progress." The judge noted the experts'

agreement as to H.E.'s diagnosis, and pointed out that their

"disagreement really rest[ed] on their perception of treatment

progress."    The judge acknowledged that H.E. has progressed but

credited the opinions of the State's experts that "[H.E.] has not

progressed far enough, and still remains highly likely [to sexually

reoffend.]"      The   judge   explicitly       rejected   Dr.     Pirelli's

assessment as to the extent of H.E.'s progression in treatment,

finding that "Dr. Pirelli [was] totally minimizing, along with

[H.E.], the nature of his offending in the . . . two predicate

cases . . . ."

     As a result, the judge did not "credit [Dr. Pirelli's] view

that [H.E.] [was] ready to be discharged."            Instead, the judge

credited the testimony of the State's experts that "[H.E.'s]

relapse prevention skills [were] not sufficient because there

                                     9                               A-4826-16T5
[was] insufficient information being put into his cycle, which

[was] the basis of his relapse prevention skills."                The judge

agreed that H.E. has participated satisfactorily, his attitude has

changed, and he has improved the manner in which he conducts

himself at the institution. However, according to the judge, H.E.

has not dealt with the issues that are raised by his predicate

offenses and he was

          going to have to come to grips with the
          dynamics of those two offenses which he
          totally, at this point, denies.    He admits
          knowing one of the victims, but denies any
          sexual contact and totally denies the second
          offense.   And Dr. Pirelli apparently agrees
          with him by looking at part of the evidence
          in the record.

Judge Freedman entered a memorializing order continuing H.E.'s

commitment and this appeal followed.

     On appeal,4 H.E. argued Judge Freedman erred in concluding

that the State met its burden of proof.             H.E. asserted that the

judge's reliance on his treatment progress was misplaced because,

unlike   paraphilia   that    does        not   spontaneously   remit,   his

antisocial   personality     disorder      diagnosis   declines   with   age

regardless of treatment effect and H.E. is now in his forties and



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-4826-16T5
his predicate offenses occurred two decades ago.             We reject these

arguments and affirm.

     "'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)). "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)).

     "The    SVPA     authorizes    the    involuntary    commitment    of    an

individual believed to be a 'sexually violent predator' as defined

by the Act."      In re Commitment of W.Z., 173 N.J. 109, 127 (2002)

(citing    N.J.S.A.    30:4-27.28).        "The   definition   of    'sexually

violent predator' requires proof of past sexually violent behavior

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

Ibid.     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 secure

facility    for   control,   care   and    treatment.'"      Ibid.    (quoting

N.J.S.A. 30:4-27.26).

     "[T]he mental condition must affect an individual's ability

to control his or her sexually harmful conduct."            Ibid.    "Inherent

in some diagnoses will be sexual compulsivity (i.e., paraphilia).

But, the diagnosis of each sexually violent predator susceptible

                                      11                               A-4826-16T5
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 Act applies to the annual

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

Super. 450, 452-53 (App. Div. 2002).          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, "[a] trial judge is 'not required to

accept all or any part of [an] expert opinion[].'"           R.F., 217 N.J.

at 174 (second and third alterations in original) (quoting D.C.,

146 N.J. at 61).       Furthermore, "an appellate court should 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 find no clear mistake on this record.              We are satisfied

that the record amply supports Judge Freedman's finding that H.E.

suffers from antisocial personality disorder and alcohol and drug

use disorders, a necessary predicate for continued commitment

under the SVPA.      See e.g., In re Civil Commitment of D.Y., 218

                                       12                             A-4826-16T5
N.J. 359, 381 (2014).        Based on credible expert testimony, the

judge   determined    that   H.E.'s       disorders,   past   behavior    and

treatment progress demonstrated that he was highly likely to engage

in   acts   of   sexual   violence    unless    confined.      The   judge's

determination, to which we owe the "utmost deference" and may

modify only where there is a clear abuse of discretion, In re

J.P., 339 N.J. Super. 443, 459 (2001), was proper.

      Affirmed.




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