                          RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE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



                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4228-14T2

IN THE MATTER OF
THE CIVIL COMMITMENT
OF C.E.G., SVP-452-07.

________________________________________________________________

           Submitted February 28, 2017 – Decided July 10, 2017

           Before Judges Reisner and Rothstadt.

           On appeal from the Superior Court of New
           Jersey, Law Division, Essex County, SVP-452-
           07.

           Joseph E. Krakora, Public Defender, attorney
           for   appellant  C.E.G.   (Nancy   C. Hayes,
           Designated Counsel, on the brief).

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

PER CURIAM

     C.E.G. appeals from a judgment entered by the Law Division

continuing his civil commitment to the Special Treatment Unit

(STU) pursuant to the Sexually Violent Predators Act (SVPA),

N.J.S.A. 30:4-27.24 to -27.38.         On appeal, he contends that there
was no basis for the court to continue his commitment, because his

conviction for the New Jersey offense that served as the predicate

for   his   original   commitment   was   vacated   as   a   result   of   his

successful petition for post conviction relief (PCR).                 He also

argues there was insufficient evidence to sustain the court's

determination that he was a "sexually violent predator" or that

there was a "risk of future recidivism."        We disagree and affirm.

      We last addressed C.E.G.'s commitment in a 2012 unreported

decision1 in which we summarized his history of violent crimes and

his initial commitment.     We stated:

            C.E.G. was civilly committed under the SVPA
            by a final order entered on September 7, 2007.
            We affirmed that order.     [C.E.G. I, supra,
            slip op. at 1.]     We described the factual
            background of C.E.G.'s commitment as follows:

                 To summarize his history of criminal
                 convictions, from the time he was
                 eighteen to the time he was forty-
                 two, C.E.G. attempted to anally
                 penetrate a three-year old girl in
                 Virginia in 1980; tried to rape a
                 twenty-seven    year   old    female
                 neighbor in 1995; and molested a
                 thirteen-year old boy in 2004. He
                 was also involved in at least two
                 non-sexual offenses in which he was

1
    This is our fourth review and affirmance of the trial court's
decisions to continue C.E.G's commitment.       See In re Civil
Commitment of C.E.G. (C.E.G. I), No. A-0823-07 (App. Div. Nov. 12,
2009); In re Civil Commitment of C.E.G. (C.E.G. II), No. A-2953-
09 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 101 (2011);
In re Civil Commitment of C.E.G. (C.E.G. III), No. A-1624-11 (App.
Div. June 26, 2012), certif. denied, 213 N.J. 567 (2013).

                                     2                                A-4228-14T2
                 armed with a gun. C.E.G. spent his
                 prison sentence for the 2004 offense
                 in the New Jersey State facility for
                 sex offenders at Avenel (ADTC).
                 While at ADTC, he made little
                 progress in treatment, "did not
                 acknowledge       his       sexually
                 inappropriate   behavior,   and   he
                 continued to minimize or deny the
                 offenses."

                 [C.E.G. I, supra, slip op. at 2-3).]

            While at the STU, C.E.G. has declined to
            participate in treatment.    He also declined
            to be interviewed for the psychological report
            prepared for his review hearing and declined
            to attend the hearing itself, which was held
            on October 20, 2011.

            [C.E.G. III, supra, slip op. at 1-2.]

     C.E.G. has continued to refuse to participate in treatment

or be interviewed for the psychological reports prepared for his

review   hearings.     However,   since   our   last   review,    C.E.G.

successfully pursued a PCR petition that resulted in the vacating

of his 2005 conviction for third-degree endangering the welfare

of a child (EWC), N.J.S.A. 2C:24-4(a), which was also the only

sexual violent offense he committed in New Jersey. He subsequently

pled guilty to harassment, N.J.S.A. 2C:33-4, a disorderly persons

offense.2




2
    The PCR court allowed C.E.G. to withdraw his original plea.

                                  3                              A-4228-14T2
     Relying on the vacating of his conviction for EWC, C.E.G.

filled a motion seeking an order to vacate his original commitment,

arguing that harassment did not constitute a predicate offense

under the SVPA.     In response, Judge Phillip M. Freedman ordered

the State to file an updated petition for civil commitment.                 The

State amended its petition to rely upon C.E.G.'s 1995 Virginia

conviction for attempted rape as the predicate offense.

     On April 24, 2015, Judge Freedman held what he characterized

as both a review hearing and "a re-hearing based on the new status

of [C.E.G.'s] criminal history."            At the hearing, the State

presented the unrebutted expert testimony of Dr. John P. Zincone,

a psychiatrist, and Dr. Laura Carmignani, a psychologist.              C.E.G.

offered no testimony or other evidence.

     The State's experts confirmed that C.E.G. refused to be

interviewed by them or participate in any treatment programs and

remains   on   "refusal   status."       Because   C.E.G.   refused    to    be

interviewed, the experts relied solely upon C.E.G.'s criminal

history and institutional records, including reports from other

experts prepared over the years, to formulate their opinions.

     Zincone testified C.E.G. suffers from anti-social personality

disorder and other specified paraphilic disorder.            He stated the

fact that C.E.G.'s conviction for EWC was vacated did not change

the underlying facts of his 2004 offense, which C.E.G. recounted

                                     4                                A-4228-14T2
to a doctor at ADTC.      Zincone noted C.E.G. has a substantial

criminal   history   involving    victims   in    a   "broad    age    range,"

including "sexual activity with children in the post-pubescent

[and] pre-pubescent age range, [and] non-consenting sex with an

adult," in addition to violent non-sexual criminal offenses.                The

doctor opined that the aggregate of those offenses raises the risk

C.E.G. will reoffend if released.           Moreover, C.E.G.'s records

reflected that he has made statements while at ADTC about not

being able to control his sexual impulses and "indicat[ing he had]

thoughts of having sex with someone much younger than himself."

Zincone concluded C.E.G. "suffers from a mental abnormality or

personality   disorder    which     predispose[s]      him     to     sexually

reoffend," with a Static-99R score that reflects he is at a

moderate to high risk of reoffending.

     Carmignani's    testimony    paralleled     Zincone's     observations,

diagnoses, and conclusions, adding that the Static-99R testing

manual "states that overturned convictions can still be counted

as the index offense" for purposes of determining the likelihood

the subject would reoffend.      She also noted, the STU has required

that C.E.G. participate "in the treatment orientation process

group at least once a week" in an attempt "to convince him to come

off treatment refusal status and to engage in treatment."



                                    5                                  A-4228-14T2
       On May 1, 2015, Judge Freedman entered a judgment continuing

C.E.G.'s commitment and placed his reasons on the record on the

same date.    In his thorough oral decision, the judge reviewed the

history of C.E.G.'s commitment and the predicate offense.             He also

discussed    the   experts'   reports       admitted   into   evidence,   their

testimony, and their recommendations for continued commitment.               He

also    considered      the   reports       about   C.E.G.'s     progress    in

institutional programs, including his refusal to participate in

treatment.    Judge Freedman found by clear and convincing evidence

that C.E.G.

            suffer[s] from a mental abnormality in the
            form of paraphilia [and other] diagnoses, and
            a personality disorder . . . that affect him
            mostly cognitively so as to predispose him
            . . . to engage in acts of sexual violence.
            And that if released, he would be -- would
            have serious difficulty controlling his
            sexually violent behavior and would, for the
            reasonably foreseeable future, be highly
            likely to engage in acts of sexual violence.

       On appeal, C.E.G. argues:

            POINT I.
            THE COURT ERRED BY FAILING TO GIVE PROPER
            WEIGHT TO [C.E.G.'s] CHANGED CIRCUMSTANCES,
            WHICH SHOULD HAVE UNDERMINED THE STATE'S CASE.

            POINT II.

            THE STATE FAILED TO PROVE BY CLEAR AND
            CONVINCING EVIDENCE THAT RESPONDENT [C.E.G.]
            IS A SEXUALLY VIOLENT PREDATOR AND THAT THE
            RISK OF FUTURE RECIDIVISM IS AT A SUFFICIENTLY


                                        6                             A-4228-14T2
            HIGH   LEVEL  TO   JUSTIFY  CONTINUED   CIVIL
            COMMITMENT UNDER THE CURRENT TREATMENT PLAN.

      The scope of our review of a trial court's commitment decision

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)).                 We

must defer to the trial judge's findings of fact so long as they

are supported by sufficient credible evidence in the record.                Id.

at 175.      Deference to the trial judge's factual findings is

appropriate because the judge had the "opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."           Id. at 174 (quoting State v. Johnson, 42

N.J. 146, 161 (1964)).

      The SVPA permits the involuntary civil commitment of "'a

person who has been convicted . . . of a sexually violent offense'

who 'suffers 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.'"    Id. at 173 (quoting N.J.S.A. 30:4-27.26).            To obtain

an order of commitment under the SVPA, the State must prove "by

clear and convincing evidence," N.J.S.A. 30:4-27.32(a),

            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

                                         7                             A-4228-14T2
           not control his or her sexually       violent
           behavior and will reoffend."

           [Ibid. (citations omitted)   (quoting In re
           Commitment of W.Z., 173      N.J. 109, 130
           (2002)).]

     "Clear and convincing evidence" is "evidence that produces

'a firm belief or conviction' that the allegations are true" and

"is 'so clear, direct[,] . . . weighty and convincing' that the

factfinder can 'come to a clear conviction' of the truth without

hesitancy."   R.F., supra, 217 N.J. at 173 (quoting In re Jobes,

108 N.J. 394, 407 (1987)).

     Applying these guiding principles, we turn first to C.E.G.'s

argument that the judge should not have relied upon an out-of-

state conviction as a predicate offense, and we conclude it is

without sufficient merit to warrant further discussion in a written

opinion.   R. 2:11-3(e)(1)(E).   We affirm substantially for the

reasons stated by Judge Freedman in his oral decision.     We add the

following brief comments.

     The PCR court's vacating of C.E.G.'s conviction for EWC did

not establish changed circumstances, and Judge Freedman correctly

relied upon his out-of-state conviction as a predicate offense to

maintain   his   commitment.     Out-of-state   convictions       that

"correspond sufficiently to sexual assaults proscribed under New

Jersey law and qualifying as predicate offenses under the SVPA"


                                 8                            A-4228-14T2
can form the predicate offense for commitment, even though they

occurred in another state and years earlier.           See In re Civil

Commitment of R.Z.B., 392 N.J. Super. 22, 44 (App. Div.), certif.

denied, 192 N.J. 296 (2007).

     Equally without merit is C.E.G.'s challenge based upon the

State's failure to file new certificates with its amended petition,

see N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.28, and his claim that

the evidence adduced at trial was insufficient.         Contrary to his

argument, we will not vacate an order for commitment due to a

technical   deficiency   in    an   underlying   certificate   when   "the

totality of the evidence" establishes defendant was a sexually

violent predator suffering from a mental condition that made it

highly likely he would reoffend, In re Civil Commitment of T.J.N.,

390 N.J. Super. 218, 226 (App. Div. 2007), especially when we

conclude,   as   here,   the   judge's   findings   were   supported     by

substantial credible evidence, despite C.E.G.'s ongoing refusal

to be interviewed for the reports.

     Affirmed.




                                     9                            A-4228-14T2
