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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5233-16T5

IN THE MATTER OF THE CIVIL
COMMITMENT OF R.E.B., SVP-367-04.
_________________________________

           Argued March 22, 2018 – Decided July 5, 2018

           Before Judges Haas and Gooden Brown.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. SVP-
           364-04.

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

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

PER CURIAM

     R.E.B. appeals from the June 7, 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 R.E.B.'s prior criminal history or the

events that followed his original admission to the STU in 2004.

They are recounted at length in our prior opinions, In re Civil

Commitment of R.Z.B.,1 392 N.J. Super. 22 (App. Div. 2007), In re

Civil Commitment of R.E.B., No. A-3270-12 (App. Div. Nov. 25,

2013), and In re Civil Commitment of R.E.B., No. A-1613-11 (App.

Div. May 20, 2014). Suffice it to say that R.E.B., born in October

1948, has an extensive criminal history in both state and federal

courts, including three separate instances of sexual offenses

against minors dating back to the early 1980s and spanning twelve

years.    His convictions include sexual assault as well as the

production, possession, and sale of child pornography.     His last

conviction occurred in 1995, and in 2005, he was committed to the

STU under the SVPA on parole violations following his release from

federal custody.

      At the civil commitment review hearing before Judge James F.

Mulvihill on May 18 and May 31, 2017, the State presented expert

testimony from psychiatrist Michal Kunz, M.D., and psychologist

Debra L. Roquet, Psy. D.    R.E.B. presented the expert testimony

of psychologist Gianni Pirelli, Ph. D.      The experts' reports,




1
    R.E.B. is referenced as "R.Z.B." in the 2007 appeal.

                                 2                          A-5233-16T5
various treatment notes, and other records were also admitted into

evidence.

      After interviewing R.E.B. on May 4, 2017, and reviewing his

previous psychiatric evaluations, STU treatment records, prison

and police records, Dr. Kunz concluded that R.E.B. met the criteria

of a sexually violent predator and was highly likely to engage in

acts of sexual violence in the foreseeable future.                        Based on

R.E.B.'s sexual arousal from pre-, peri-, and post-pubescent males

between the ages of nine and eighteen, Dr. Kunz diagnosed R.E.B.

with "pedophilic disorder, sexually attracted to male[s], non-

exclusive"; "other specified paraphilic disorder with a focus on

teenagers, . . . sometimes          referred        to   as     hebephilia";    and

"other . . . specified personality disorder with antisocial and

narcissistic traits."        According to Dr. Kunz, these disorders do

not   spontaneously       remit    and    affect    R.E.B.     "predominantly     in

the . . . cognitive sphere of his ability to . . . recognize his

feelings," making him predisposed to sexually reoffend.                   Dr. Kunz

acknowledged       that   treatment      could   control      the   impulses   these

disorders cause, but, in his opinion, R.E.B. had not had enough

treatment to adequately control his impulses if released at this

time.

      Dr.   Kunz    noted   that    R.E.B.'s       "sexual    offending   history"

showed an "escalation," beginning "with two boys whom he just

                                          3                                A-5233-16T5
encountered       in     the    street,"       progressing    to   "him   actually

bringing . . . victims into his home," and ultimately evolving

into "this elaborate well-organized effort to lure a number of

boys into the residence by a variety of activities . . . that

[were] likely to entice boys."                 Dr. Kunz observed that R.E.B.'s

offense     history       showed     "a    really    strong    sexually    deviant

attraction to boys" that he maintained and acted on "despite

punishment."       Dr. Kunz also noted that R.E.B.'s "deceitful" and

"sophisticated" manner of grooming and gaining access to the

victims was "consistent[] with his personality structure."

       Although R.E.B.'s most recent PCL-R2 score was 24.2, which

was    at   the   high    end   of   the   moderate    range   for   psychopathic

deviance, given his prior higher scores, Dr. Kunz was still of the

opinion that R.E.B.'s history of antisocial behaviors corresponded

with his antisocial personality characteristics and was indicative

of psychopathic traits.              Dr. Kunz noted that R.E.B. passed his

most    recent    Deviant       Arousal    Polygraph    Examination,      and   that



2
   According to Dr. Kunz, the PCL-R, or psychopathy checklist
revised, provides a dimensional score that represents the extent
to which an individual is judged to match the prototypical
psychopath. Higher scores indicate a closer match and, presumably,
a greater confidence that the individual is a psychopath.       An
individual who receives a score of thirty or above meets the
diagnostic criteria for psychopathy.      Previously, R.E.B. had
scores of 29.5 and 30.5.


                                           4                                A-5233-16T5
despite reporting being aroused by teen and adult males, he showed

no arousal to any deviant or non-deviant stimuli during a 2016

penile plethysmograph (PPG).3          However, Dr. Kunz pointed out that

the test results were not valid because R.E.B. described the

"setup" as "creepy," resulting in the suppression of "whatever

sexual arousal there may have been."

     As to his intellectual and educational background, R.E.B.'s

IQ score was in the superior range, and Dr. Kunz confirmed that

R.E.B.    had   a    Bachelor's   degree    in    Psychology    from      New   York

University.         As to substance abuse history, R.E.B. had "some

history    of   marijuana    abuse,"    but      Dr.   Kunz   did   not   "find     a

persistent pattern" to make "it particularly significant."

     Dr. Kunz gave R.E.B. a Static-99R4 score of three, indicating

an average risk for re-offense.          However, in classifying R.E.B.'s


3
   According to Dr. Kunz, a PPG is a test to determine a person's
arousal whereby "a device is placed on a person's penis," and then
the person is "exposed to . . . sexually arousing stimuli," and
"the device measures the arousal by . . . measuring the changes
in the . . . circumference of the penis."
4
    "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) (citing Andrew
Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). 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)).

                                        5                                   A-5233-16T5
risk to sexually reoffend in the foreseeable future as "high," Dr.

Kunz considered other dynamic risk factors such as R.E.B.'s:

"[s]exual   preference      for    children";     "psychopathy";         "lack      of

concern     for      others";       "intimacy      deficits";           "emotional

identification      with   children";       reliance   on   sex    as    a    coping

mechanism; "attitudes tolerant of sexual assault"; "dropping out

of [past] sexual offender treatment"; "violation of [parole]"; and

"cooperation with supervision."

     Dr. Kunz "consider[ed] mitigating factors in three areas,

namely age, disabling medical conditions and treatment."                 However,

inasmuch as R.E.B.'s offenses did not involve physical force, Dr.

Kunz did not believe that R.E.B.'s current age of sixty-eight

would "impede . . . his ability to access[,] . . . groom[,] or

manipulate his victims."          In addition, Dr. Kunz found R.E.B. was

"fit and healthy in spite of the fact that he suffered a heart

attack" in 2011, which resulted in the placement of several stents.

Further, Dr. Kunz noted that while R.E.B. "has made progress in

treatment[,] . . . he still need[ed] to work more in treatment to

fully mitigate his risk."

     Dr. Kunz recounted R.E.B.'s treatment prior to coming to the

STU as well as his treatment progress at the STU.                        Prior to

arriving at the STU, R.E.B. received sex offender treatment on

three   different    occasions.       Despite     receiving       treatment,        he

                                        6                                    A-5233-16T5
continued to "pursue[] his deviant sexual interests," which Dr.

Kunz interpreted as a sign of "the strength of his sexual arousal

as well as the sort of resistance to interventions that could help

him reduce his risk to reoffend."   Although R.E.B. had entered the

second half of the more advanced part of the core phase of

treatment at the STU and despite his intelligence and education

level, Dr. Kunz opined that R.E.B.'s treatment progress had been

hampered   by   "his    personality    traits"      that   "continue

to . . . create risk[s] for him" and "interfere with his treatment

and his ability to engage in treatment."          As a result, the

treatment has not had "the desired effect."

     Specifically, Dr. Kunz explained that repeated themes in the

treatment team reports showed that R.E.B. did not demonstrate a

full command over his sexual assault cycle, had "interpersonal

problems" with other residents, and became "defensive" when "given

feedback by his peers or by his treaters."       Dr. Kunz found this

significant because R.E.B. would have to rely on his peers and

treaters once discharged and would therefore have to find a way

"to interact" without this "ongoing" antagonism.      As to R.E.B.'s

understanding of his sexual assault cycle, Dr. Kunz explained

that, for a long time, R.E.B. would not "acknowledge" his "arousal

to underage individuals" and had "interpret[ed] his arousal to

teenagers as essentially stemming from his . . . internal conflict

                                7                            A-5233-16T5
over his homosexuality."             Dr. Kunz again attributed R.E.B.'s

resistance to "his personality traits," and to his "rigidity" or

"difficulty" recognizing his feelings.

      Dr. Roquet, a member of the STU's Treatment Progress Review

Committee (TPRC), conducted an annual review of R.E.B.'s progress

in   treatment    by    interviewing     R.E.B.    and    reviewing   the     prior

treatment notes and reports.             Dr. Roquet agreed with Dr. Kunz's

diagnosis   and       concluded   that    R.E.B.   suffered    from   a      mental

abnormality      or    personality    disorder     that   predisposed     him      to

sexually reoffending.        She characterized R.E.B. as "highly likely

to sexually reoffend" in the foreseeable future "without a high

level of external controls."                 Dr. Roquet opined that R.E.B.

required continued "confinement to the STU in order to mitigate

that risk."

      Referring to R.E.B.'s PCL-R and Static99-R scores to which

Dr. Kunz had previously testified,5 Dr. Roquet elaborated that

"the primary concern" was R.E.B.'s "sexual pathology," which was


5
   Dr. Roquet also administered the Stable-2007, a risk assessment
instrument "developed to assess change in intermediate term risk
status, [and] assessment needs, and [to] help predict recidivism
in sexual offenders." R.E.B.'s Stable-2007 score was "[twelve]
out of a possible [twenty-six] points," which was a "high" score
for the presence of dynamic factors associated with recidivism.
Together, the Stable-2007 and the Static-99R "provide [a]
composite assessment of [R.E.B.'s] risk/needs," and "place[d] him
in    the   [m]oderate-[h]igh   category   for   supervision   and
intervention."

                                         8                                  A-5233-16T5
"likely to continue to drive his behavior in the community,

and . . . would be further enhanced or supported by problematic

antisocial and psychopathic personality characteristics despite

his   age."     Dr.    Roquet     pointed    out      that   R.E.B.'s    sexual

preoccupation manifested itself in his continued reporting of

"ongoing pop-ups" and in his "strong arousal to young boys."                 Dr.

Roquet reconciled R.E.B.'s continuous sexual thoughts about minors

with passing the polygraph by explaining that the polygraph "has

to do with behavior, . . . specifically with masturbation," so

while R.E.B. "[may] not be engaging in the behavior," which was

"positive," it did not "mean that the thoughts [were] . . . not

present."

      According to Dr. Roquet, while some of the "characteristics

associated     with    psychopathy        and      antisocial     personality

disorder . . . start to diminish after age [forty]," there were

other characteristics still present in R.E.B. that would continue

to influence him.       Dr. Roquet also testified that, although

R.E.B.'s last offense occurred in 1993 when he was forty-five

years old, the "length of time since the last offense" did "not

have much of an impact . . . on the risk assessment" because "he

[had] been confined for most of that time."

      While   other   treatment    team     members    believed   R.E.B.     was

"making some progress in addressing some of the dynamic risk

                                     9                                  A-5233-16T5
factors," Dr. Roquet was of the opinion that, as long as R.E.B.

continued to resist "dealing head-on with the pedophilic arousal,"

he would not be able to "integrate" and "use the kind of arousal

management        strategies             and           relapse           prevention

strategies . . . necessary         for     him     to     be     safe      in    the

community . . . and . . . not reoffend."               Dr. Roquet was troubled

by treatment team reports that R.E.B. "distance[d] himself from

his deviant arousal," "present[ed] himself as more sexually benign

than    his   history    indicate[d],"           and     "romanticize[d]         his

relationship with underage males" by "refer[ing] to his victims

as friends" and "confounding sexual exploitation with helping."

Pointing to specific discrepancies between the official record and

R.E.B.'s account of his sexual offending history, Dr. Roquet

emphasized that R.E.B. needed "to shed light on his offense-related

arousal with no minimization of past or present arousal" in order

to make "substantial . . . progress in this problem area."

       Dr. Pirelli conducted a forensic psychological evaluation of

R.E.B. at his attorney's request, which included two interviews

with R.E.B.   Although Dr. Pirelli agreed with the diagnosis of the

State's experts and acknowledged that R.E.B.'s symptoms were "not

curable," he opined that the conditions did not impair R.E.B.'s

volitional    capacity   because    "he    [did]       have    control    over   his

behavior."    Thus, Dr. Pirelli assessed R.E.B.'s risk of re-offense

                                     10                                     A-5233-16T5
if released into the community as "less than highly likely" and

recommended a "structured . . . discharge and treatment plan" with

"external monitoring."          While acknowledging that R.E.B. "has a

number of risk factors," Dr. Pirelli believed R.E.B. was "highly

likely to comply with the plan," was "much more equipped than his

peers,"    and,   in   many    ways,    had     the   "ability     to    actually      be

successful in the community."

     To support his opinion, Dr. Pirelli administered the Risk for

Sexual    Violence     Protocol       (RSVP),    "a     structured      professional

judgment"     measure,        which    includes       twenty-two        "empirically

supported    sexual    violence       risk    factors     across   five       domains":

sexual     violence     history,       psychological        adjustment,          mental

disorder,    social    adjustment,       and    manageability.           Dr.    Pirelli

disagreed that R.E.B. was resistant to treatment and believed he

had made "significant treatment gains over the years" and would

not "benefit from being [at the STU] any longer."                        Dr. Pirelli

explained that the STU provided a "cognitive behavioral treatment"

program to effect behavioral change, rather than "personality

change."     Thus, in Dr. Pirelli's opinion, R.E.B.'s personality

characteristics limited his amenability to further progress in

treatment    there.      Dr.     Pirelli       believed    R.E.B.       had    achieved

behavioral change, and "the things that [were] getting him hung

up at this point" were not directly related to sexual violence

                                         11                                     A-5233-16T5
risk.   For example, Dr. Pirelli attributed R.E.B.'s interpersonal

conflicts   to    his    superior   intelligence   and    frustrations     from

interacting with less intelligent peers and staff.

     In an oral opinion rendered on June 7, 2017, Judge Mulvihill

found by "clear and convincing evidence" that R.E.B. was "convicted

of   very   serious      sexually    violent   offenses";     suffers      from

"pedophilia      and    other   specified   personality    disorder,     [and]

paraphilia in terms of . . . hebephilia," which "affect him

emotionally,      cognitively,      [and]   volitionally";    has   "serious

difficulty controlling his sexually violent behavior"; and was

"[h]ighly likely at this time to sexually reoffend" if released.

The judge found the State's experts "very credible" and made

findings consistent with their testimony and reports.               Although

he also found Dr. Pirelli's testimony credible, he credited the

contrary opinion of the State's experts regarding R.E.B.'s current

risk to reoffend.

     Judge Mulvihill recounted R.E.B.'s extensive criminal history

and acknowledged that the offenses occurred over twenty-four years

earlier, but found "[s]ignificance in [the] number of victims, the

age range, the persistence of offending, [and] the variety of

sexual activities."         Additionally, the judge detailed R.E.B.'s

extensive treatment history and acknowledged that he had received

a "significant amount of treatment," had "completed all treatment

                                      12                               A-5233-16T5
modules," and "made a lot of progress," but this did "not mitigate

his risk completely" or lower it to "less than highly likely."

The judge explained that despite being active in treatment, having

superior intelligence, and understanding the concepts, R.E.B.

"still struggle[d] with his deviant arousal" and "[did] not have

full command of his sexual assault cycle."   The judge stated that

R.E.B. had to work on ensuring that he understood that it was "not

okay in any way, shape or form to act upon his deviancy towards

underage boys."   Judge Mulvihill entered a memorializing order

continuing R.E.B.'s commitment, and this appeal followed.

     On appeal,6 R.E.B. argues Judge Mulvihill misapplied the

applicable principles in concluding that he continued to pose a

risk and was highly likely to reoffend sexually if released.       In

support, R.E.B. points to his advanced age and medical condition,

and to the length of time he has spent at the STU with good

institutional behavior.   He claims the judge ignored the lack of

recent evidence of sexual deviancy and only relied on evidence

from his dated convictions.   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.,


6
     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.

                                13                          A-5233-16T5
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)[,]       [b]ut,     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 Act applies to the annual

                                          14                                     A-5233-16T5
review hearing.     In re Civil Commitment of E.D., 183 N.J. 536, 551

(2005).    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."        Ibid. (quoting 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

(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 Mulvihill's finding that

R.E.B.    suffers   from   pedophilia,   other   specified    paraphilic

disorder, and other specified personality disorder, a necessary

predicate for continued commitment under the SVPA.         See, e.g., In

re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014).            Based on

credible expert testimony, the judge determined that R.E.B.'s

disorders, past behavior and treatment progress demonstrated that

he was highly likely to engage in acts of sexual violence unless

                                  15                               A-5233-16T5
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 Commitment of J.P., 339 N.J. Super. 443, 459

(App. Div. 2001) (quoting State v. Fields, 77 N.J. 282,311 (1978)),

was proper.

     Affirmed.




                                16                          A-5233-16T5
