RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0759-17T5

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. SVP075-00.

Patrick Madden, Assistant Deputy Public 

Defender, argued the cause for appellant E.D. 

(Joseph E. Krakora, Public Defender, 

attorney).

Victoria R. Ply, Deputy Attorney General, 

argued the cause for respondent State of New 

Jersey (Gurbir S. Grewal, Attorney General, 

attorney).

PER CURIAM

E.D. appeals from the September 27, 2017 Law Division order

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 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-0759-17T5

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 history 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, 2016), 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 conviction arose out of his assault of a 

woman whom police found bleeding and with the crotch area of her 

pants torn. His 1978 conviction for rape involved him breaking 

into the victim's apartment. His 1994 conviction for criminal 

sexual contact resulted from him kicking in the victim's front 
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door. His 1997 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 1997 conviction. In 2003, he was 

conditionally discharged but later returned to the STU due to a 

violation of the discharge conditions. 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 conditional 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 interviewing E.D. in August 2017 

and reviewing his previous psychiatric 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. Scott, these disorders do not 
4 A-0759-17T5

spontaneously remit, and their emotional, cognitive, and

volitional 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." Although 

E.D. denied "having a deviant arousal" or "deviant fantasies," Dr. 

Scott opined that, given his diagnosis, he did not exhibit enough 

understanding of important 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-0759-17T5

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. had "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-99R1 score 

was five, which indicated 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.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 

137 (2002)).
6 A-0759-17T5

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 and opined that he was 

currently "highly likely" to re-offend if released into the 

community. Furthermore, 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 within 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-0759-17T5

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 the 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, after 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. was "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-0759-17T5

Dr. Dudek also gave E.D. a score of five on the Static-99R,

but found several dynamic risk factors, including relationship 

instability, "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 an oral opinion rendered immediately after the hearing, 

Judge Mulvihill found "by clear and convincing evidence" that E.D.

had "been convicted of a sexually violent offense"; "suffer[ed] 

from antisocial personality disorder and paraphilia otherwise 

specified which affect him emotionally, cognitively, [and]

volitionally"; had "serious difficulty controlling his sexually 

violent behavior"; and was "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 opinion 
9 A-0759-17T5

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 "extensive" juvenile 

and criminal history but acknowledged that, while E.D.'s sexual 

offenses were "very serious," they were twenty-five years old.

Further, the judge referenced E.D.'s extensive "substance abuse 

history," which began with alcohol at age fourteen and cocaine and 

marijuana at age seventeen. Additionally, Judge Mulvihill 

acknowledged that E.D. was making "some progress 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 now. Judge Mulvihill

entered the order continuing E.D.'s commitment, and this 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 the factors indicating he

did not pose a risk and was not likely to reoffend sexually. In 

particular, E.D. pointed out that he did not sexually reoffend 

when he absconded from conditional discharge between 2010 and 

2014. In addition, he notes he has made progress in treatment and 
10 A-0759-17T5

has a reduced Static 99-R score because of his advanced age.2 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,'" which, 

in E.D.'s case, is undisputed. 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). 

 

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 

argument.
11 A-0759-17T5

"[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 

to civil commitment need not include a diagnosis of 'sexual 

compulsion.'" Id. 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 is 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 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). 
12 A-0759-17T5

We find no clear mistake on this record. We are satisfied 

that the record amply supports Judge Mulvihill's finding that E.D. 

suffers from antisocial personality disorder and other specified 

paraphilic disorders, 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 disorders, 

polysubstance dependence, 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 Commitment of J.P., 339 N.J. 

Super. 443, 459 (2001), was proper.

Affirmed.