## RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0759
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IN THE MATTER OF THE CIVIL COMMITMENT OF E.D., SVP - 075
- 00.

________________________________

Argued March 22, 2018

– Decided June 21, 2018 Before Judges Haas and Gooden Brown. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP

075
- 00. Patrick Madden, Assistant Deputy Public Defender, argued the cause for appellant E.D. (Joseph E. Krakora, Public Defender, attorney). Victoria R. Ply, Deputy Attorney Gene ral, argued the cause for respondent State of New Jersey (Gurbir S. Grew a l, Attorney General, attorney).
PER CURIAM E.D. appeals from the September 27, 2017 Law Division order continuing his commit ment to the Special Treatment Unit (STU) , the secure facil ity designated for the custody, care , and treatment of sexually violent predators , pursuant to the Sexually Violent NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
- 3.2 A - 0759
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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 E.D.'s prior criminal histo ry or the
events that followed his original admission to the STU in 2000. They are recounted at length in our Supreme Court's decision , In re Civil Commitment of E.D. , 183 N.J. 536 (2005), as well as in our prior opinions, In re Civil Commitment of E.D. , 353 N.J. Super. 450 (App. Div. 2002), In re Civil Commitment of E.D. , No. A - 3984
- 02 (App. Div. May 14, 2004), In re Civil Commitment of E.D. , No.

A - 0685
- 05 (App. Div. Jan. 14, 2008) , and In re Civil Commitment
of E.D. , No. A - 5263
- 13 (App. Div. Oct . 28 , 20 16 ) , certif. denied , 230 N.J. 487 (2017) . Suffice it to say that E.D. , born September 1957, has an extensive juvenile and adult criminal history , which began at age fourteen. Initially, E.D.'s offenses were primarily non - sexual theft , assault , and drug
- related charges . However, in the 1970's, his offenses became more violent and developed sexual overtones. Specifically, his 1977 convict ion arose out of hi s assault of a woman who m police found bleeding and with the crotch area of her pants torn . H is 19 78 conviction for rape involved him breaking into the victim's apartment . H is 1994 conviction for criminal
sexual contact resulted from him kicking in the victim's front3 A - 0759
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door . H is 199 7 conviction for assault arose out of him ordering the victim to remove her clothes at knifepoint . He was committed to the STU under the SVPA in 2001, following his incarceration for the 199 7 conviction . I n 2003, he was conditionally discharged but later returned to the STU due to a violati on of the discharge cond itions . In 2010 , he was conditionally discharged again , but he absconded in 2012, and
returned to the STU on the violation in 2014 . At the September 27, 2017 civil commitment review hearing before Judge James F. Mulvihill that is the subject of this appeal , the State presented expert testimony from Dr. Marta Pek Scott and Dr. Paul Dudek to support E.D.'s continued commitment . In opposition, E. D . testified on his own behalf and explained the circumstances that led to his c onditional discharge violations . Dr. Scott, a psychiatrist, conducted a forensic psychiatric evaluation of E.D and submitted a report that was admitted into evidence at the hearing . After interview ing E.D. in August 2017 and review ing hi s previous psychia tric evaluations, STU treatment records, prison and police records, she concluded that E.D. met the criteria of a sexually violent predator. Dr. Scott diagnosed E.D. with antisocial personality disorder and polysubstance use disorder . According to Dr. Sc ott , these disorders do not4 A - 0759
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spontaneously remit , and their emotional, cognitive, and volitiona l effects make E.D. predisposed to commit acts of sexual violence. Dr. Scott also diagnosed E.D. with "borderline intellectual functioning" but acknowledged that it did not appear "he would suffer adaptive limitations." Because of insufficient evidence, Dr. Scott did not diagnose E.D. with a paraphilic disorder . She believed E.D. committed his
offenses " in the context of his personality disorder . . . combined with . . . substance use " because E.D.
told her " he was intoxicated during all the offenses." A lthough E.D. denied "having a deviant arousal" or "deviant fantasies," Dr. Scott opined that, given his diagnosis, he did not exhibit enough understanding of im portant sex offender concepts to mitigate his risk for sexual re

- offense. According to Dr. Scott, while E.D.'s most recent progress
notes indicated "that he [had] significantly improved upon the quality of his treatment participation and motivation, and processed several issues . . . related to his dynamic factors[,] [o]n the other hand, . . . he still [had] negative core beliefs about women" and "continue[d] to believe that the conditions of his discharge" were unfair. E.D. also consistently denied that any of his sexual offenses were non

- consensual.5 A - 0759
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Dr. Scott testified E.D. " still [had] work to
do . . . developing his sexual assault cycle and . . . appropriate relapse prevention plan. " According to Dr. Scott, E.D. ha d " no relapse prevention plan . . . despite the number of years he [had] spent at the STU , " and his argument that he did not commit " any sex crime [ s ] during the time he . . . spent in the community . . . [did] not constitute a relapse prevention plan by
any means. "
Dr. Scott stated that at age sixty, E.D. 's Static

- 99R 1 score

was five , which indicate d an above average risk for re

- offending . In addition to the actuarial measure, Dr. Scott considered various dynamic risk factors " that are not represented in the Static

- 99R ," such as " early onset of sexual offending, substance abuse history, antisocial personality structure, re

- offending after previous consequences, poor cognitive problem solving skills, cognitive

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) (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.'" Ib id. (quoting In re Commitment of R.S. , 173 N.J. 134, 137 (2002)).6 A - 0759
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distortions, and . . . inability to comply with treatment and supervision. "
Dr. Scott also considered various mitigating factors such as

" advanced age, serious illness, and skills obtained in treatment. " However, she determined that none of these factors "provide[d] sufficient risk mitigation" in E.D.'s case a nd opined that he was currently "highly likely" to re

- offend if released into the community . Further more , E.D.'s inability to comply with the conditions of his discharge in the past " indicate[d] that he [was] not ready for community life yet , " and was unlikely to abide by conditions if discharged a third time with in the next twelve
months . Dr. Paul Dudek, a psychologist and member of the STU's Treatment Progress Review Committee (TPRC), conducted an annual review of E.D.'s progress by interviewing E.D. and analyzing the prior TPRC reports and prior treatment team reports . He also submitted a report that was admitted into evidence. Dr. Dudek
concluded that E.D. " would be highly likely to re

- offend sexually , " and had not experienced sufficient treatment effect to mitigate that risk. Dr. Dudek generally agreed with Dr. Scott's diagnosis but added a diagnosis of "other specified paraphilic disorder,7 A - 0759
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specifically non

- consent, with antisocial personality disorder," polysubstance use disorder , and "borderline intellectual functioning." Dr. Dudek attributed his diagnosis to "a strong component of that drive to act out on the urges and the fantasies
related to non
- consent , " despite E.D.'s denial of "any sort of urges or a pattern of arousal to t he kind of offenses . . . he's been involved in." Dr. Dudek explained that deviant arousal is a significant risk factor that treatment can control but cannot eliminate. According to Dr. Dudek, a fter E.D. returned to the STU, he began his treatment trajectory poorly by focusing on the conditions of his discharge , which he believed were unfair . However, " during
the course of his treatment ," he became " more oriented towards recognizing his . . . poor problem solving, and the impulsivity and decision making " that " led to his return to the STU. " Nonetheless, while E.D. wa s " becoming more engaged in the treatment, his understanding of the actual sex offense related factors" as well as "his own relapse prevention planning" were "relatively poor " and "hampered by his denial of the offenses." Given E.D.'s current treatment trajectory, Dr. Dudek stated it was "unlikely that he would comply with any sort of conditions of discharge."8 A - 0759
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Dr. Dudek also gave E.D. a score of five on the Static

- 99R , but found several dynamic risk factors, including relationship in stability, " poor cognitive problem solving, " a " history of impulsivity, " " hostility toward women, " " general social rejection, " noncompliance with supervision, and " deviant arousal patterns. " Although treatment exposure and advanced age could be mitigating factors, Dr. Dudek concluded that , in E.D.'s case,
treatment had " not been sufficient . . . to reduce [his] risk , " and there was " no indication" that his advanced age has had a beneficial effect.

In a n oral opinion rendered immediately after the hearing, Judge Mulvihill found " by clear and convincing evidence " that E.D.
ha d " been convicted of a sexually violent offense " ; " suffer[ed] from antisocial persona lity disorder and paraphilia otherwise specified which affect him emotionally, cognitively , [ and ] volitionally " ; ha d " serious difficulty controlling his sexually violent behavior " ; and wa s " highly likely to sexually re

- offend " if released . The judge found both experts credible and made findings consistent with their testimony and reports . He agreed with their diagnosis of antisocial personality disorder and polysubstance dependence but disagreed with Dr. Scott's opinion9 A - 0759
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that there was "no paraphilia" and no "deviant arousal . " In that regard, he credited Dr. Dudek's contrary opinion. Judge Mulvihill also recounted E.D.'s " ex t ensive " juvenile and criminal history but acknowledged that , while E.D.'s sexual offenses were "very serious, " they were twenty - five years old. Further, t he judge referenced E.D.'s extensive " substance abuse history, " which began with alcohol at age fourteen and cocaine and marijuana at age seventeen. Additionally, J udge Mulvihill acknowledged that E.D. was making "some p rogress in treatment recently " but noted that he continued to deny the sexual offenses
and that, given his two prior failed attempts, he could not demonstrate that he was "highly likely to adhere" to the conditions of a conditional discharge if released no w . Judge Mulvihill entered the order continuing E.D.'s commitment , and t his appeal
followed. On appeal, E.D. concedes he committed a "sexually violent offense" and is therefore subject to the SVPA, but argues Judge Mulvihill gave insufficient weight to th e factors indicating he did not pose a risk and was not likely to reoffend sexually. In particular, E.D. point ed out that he did not sexually reoffend
when he absconded from conditional discharge between 2010 and 2014. In addition, he notes he has made p rogress in treatment and10 A - 0759
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has a reduced Static 99

- R score because of his advanced age. 2 We reject these arguments and affirm.

" T he 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 pr edator' requires proof of past sexually violent behavior through its precondition of a 'sexually violent offense , ' " which, in E.D. 's case, is un disputed. Ibid. It also requires that the person "suffer[] from a mental abnormality or personality disorder

t hat 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).

2 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 ar gument.11 A - 0759
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"[T]he mental condition must affect an individual's ability to control his or he r sexually harmful conduct." Ibid. " Inherent in some diagnoses will be sexual compulsivity (i.e., paraphilia ), " but , " the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of ' sexual compulsion. ' " I d. at 129 . The same standard "to support involuntary commitment of a sex
offender under the Act . . . applies for [an individual] who has been given a conditional discharge and i s alleged to have violated it." E.D. , 183 N.J. at 551. 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 beha vior 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 (alteration s in original) (quoting D.C. , 146 N.J. at 61).

Fu rthermore, "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).12 A - 0759
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We find no clear mistake on this record. W e are satisfied
that t he record amply supports Judge Mulvihill's finding that E.D. suffers from antisocial personality disorder and other specified paraphilic disorder s , 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 E.D.'s disorder s , polysubstance dependence , past behavior , and treatment progress
demonstrate d that he was highly likely to engage in acts of sexu al violence unless confined. T he 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 (2001) , was proper . Affirmed.