IN THE MATTER OF THE CIVIL COMMITMENT OF G.B.

 RECORD IMPOUNDED
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1601-21
IN THE MATTER OF THE
CIVIL COMMITMENT OF
G.B., SVP-498-08.
________________________
Argued September 12, 2023 – Decided September 28, 2023
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Docket No. SVP-498-08.
Catherine Reid, Designated Counsel, argued the cause
for appellant G.B. (Joseph E. Krakora, Public Defender,
attorney; Catherine Reid, on the briefs).
Stephen Slocum, Deputy Attorney General, argued the
cause for respondent State of New Jersey (Matthew J.
Platkin, Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen
Slocum, on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
G.B. appeals from the January 3, 2022 order continuing his involuntary
commitment in the Special Treatment Unit (STU) pursuant to the Sexually
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-1601-21
Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.1 We affirm,
substantially for the reasons stated by the trial court in its December 31, 2021
oral opinion.
I.
The facts leading to G.B.'s initial commitment to the STU are recounted
in our 2012 decision, In re Civ. Commitment of G.B., No. A-4763-08 (App. Div.
Oct. 12, 2012) (slip op. at 1-6), and specifically include the sexual assaults he
committed against his daughter, A.B. We summarize the pertinent facts to
provide context for our decision on the instant appeal.
In June 1995, several months after A.B. was born,
G.B.'s wife brought her to the hospital where an
examination revealed a total of eleven fractures: a
recently fractured left leg, older fractures of the right
leg, and partially healed fractures to both arms. The
infant also had bite marks on both of her feet and her
left hand, as well as a thumbprint bruise on her thigh.
Although G.B. initially claimed that [A.B.'s] injuries
resulted from "rough play" and were not inflicted
intentionally, he ultimately pleaded guilty to fourth-
degree child abuse, N.J.S.A. 9:6-3, and was sentenced
1 We use initials to refer to appellant and his victim because records pertaining
to civil commitment proceedings under the SVPA are deemed confidential under
N.J. Super. 30:4-27.27(c) and are excluded from public access pursuant to Rule
1:38-3(f)(2).
3 A-1601-21
to probation for three years. He was ordered to
attend . . . counseling, . . . . He was further prohibited
from contacting his daughter. [However, i]n 1997, the
family reunified.
Shortly after reunification, and while still on probation
for physically abusing [A.B.], G.B. began sexually
abusing his then two-year-old daughter. The child later
told police . . . her father touched her vagina with his
hand, performed cunnilingus on her and made her
perform fellatio on him until he ejaculated in her
mouth. The sexual abuse persisted until 2001, when the
then six-year-old disclosed the abuse to her mother.
Rather than report the abuse to law enforcement, G.B.'s
wife asked him to stop. A few months later, G.B.
signed himself into a hospital[,] claiming suicidal
ideation[,] and admitted to touching his daughter in a
sexually inappropriate manner.
G.B. was arrested and charged with ten counts of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1), five counts of second-degree sexual assault,
N.J.S.A. 2C:14-2(b), and three counts of second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-
4(a).
Documentation from the [New Jersey State Diagnostic
and Treatment Center (ADTC) later] reveal[ed] that,
during therapy sessions at the facility, G.B.
admitted . . . he "intentionally broke the limbs of his
baby" and recounted how he remembered "her
screaming [on one occasion] before [the limb] actually
snapped." He also revealed . . . he would intentionally
compress his daughter's chest until she turned blue, and
that he bit her fingertips and heels.
While at the ADTC, G.B. also [disclosed] that he began
molesting his two younger half-sisters when he was
4 A-1601-21
between eleven and thirteen-years-old and they were
two and four years of age. During his testimony at his
[initial] civil commitment hearing, G.B. admitted to
rubbing his penis on their vaginas and performing
cunnilingus on both. His testimony also revealed
incestuous acts with his full sister.
[In] April . . . 2007, G.B.'s case manager at ADTC,
Cari-Ann Feiner-Escoto, Psy.D., issued a termination
report, in which she opined that G.B. presented "a much
higher risk for sexual reoffense than suggested by the
actuarials." She noted that "his sexual offending and
sadistic assaults overlap[ped] in time and were
perpetrated on the same victim"[; she also] remarked on
his "seemingly uncontrolled momentary smile" when
he discussed his "sadistic arousal" when harming his
young daughter. Dr. Feiner-Escoto . . . recommended
that G.B. be screened for involuntary civil commitment
under the SVPA, "[g]iven his sadistic arousal,
obsessive preoccupation with his victim and family,
and likely danger he pose[d] to his daughter."
[Two doctors] jointly conducted a screening [in]
June . . . 2007, and related their findings in a
Psychiatric Termination Report. . . . In their
conclusion, the examiners acknowledged the risk that
G.B. posed to his daughter and recognized that he
would likely continue to have issues with children
generally. Nevertheless, they determined that he was
not highly likely to sexually reoffend and, thus, did not
meet the threshold for involuntary commitment.
G.B. was released from custody [in] October . . . 2007.
At the time of his release, he was not referred to the
Attorney General for possible commitment under the
SVPA.
5 A-1601-21
When the Burlington County Prosecutor's Office
contacted Dr. Feiner-Escoto [regarding] Megan's Law
tiering2 for G.B., she disclosed G.B.'s troubling
childhood behaviors, details of his physical and sexual
abuse of his daughter, and his persistent attempts while
at the ADTC to contact his family[,] despite an
institution rule prohibiting contact with his victim. Dr.
Feiner-Escoto also expressed concern over G.B.'s "skill
at presenting as believably remorseful and sincere
while continuing to make attempts to contact [his
daughter]" and his "disingenuous presentation." The
State hired [another doctor] to conduct a preliminary
assessment of G.B. After reviewing the case records,
[that doctor] determined . . . G.B. displayed
psychopathic tendencies and should be referred for civil
commitment.
On the State's motion, G.B. was taken into custody in
July 2008 to submit to a psychiatric evaluation to
determine if he met the criteria for commitment as a
sexually violent predator.
[Id. at 2-6.]
In 2009, the trial court granted the State's petition to civilly commit G.B.
under the SVPA. We affirmed that decision in 2012. Id. at 22.
In 2014, following an annual review hearing, the trial court ordered
conditional discharge planning for G.B., against the recommendation of the
treatment team and the STU. In preparation for his release, G.B. participated in
2 G.B. was classified as a Tier Three (high-risk) sex offender pursuant to
Megan's Law, N.J.S.A. 2C:7-1 to -11.
6 A-1601-21
twelve furloughs without incident. But during the discharge process, the State
learned that for approximately eighteen months, G.B. had been secretly involved
in a long-distance relationship with a woman who had a two-year-old son and
worked at a daycare center, and he had discussed the possibility of starting a
family with this woman. G.B. admitted he purposely did not disclose the
relationship because he thought others would negatively react to the news.
In October 2014, G.B.'s discharge planning was halted, and he was
removed from the Therapeutic Community (TC) due to his secret keeping; non-
communication with treatment staff; negative contracting; negative
emotionality; lack of motivation; and poor relapse prevention skills. He
returned to the TC in March 2015.
In August 2019, G.B. retained a magazine picture of children in bathing
suits. He kept the picture in his locker over the weekend and only turned it over
to staff the following Monday afternoon. G.B. admitted it was a "poor decision
on [his] part to hold on to" the picture, but he became upset with members of his
process group when they challenged him about keeping the picture. He insisted
he did not retain the picture for the purpose of arousal.
7 A-1601-21
Four months later, G.B. submitted to a Sexual History polygraph. The
exam revealed his discomfort when he was asked if he withheld information
about any deviant sexual behaviors.
On October 4 and 12, 2021, the trial court conducted an annual review
hearing. During the hearing, the State presented the expert testimony of Dr.
Michael Kunz, a psychiatrist, and Dr. Jamie R. Canataro, a psychologist. G.B.
presented expert testimony from Dr. Christopher P. Lorah, a psychologist, and
testimony from his friend, David Treadwell. Additionally, G.B. testified.
Dr. Kunz reported he diagnosed G.B. with pedophilic disorder with
sadistic features, sexually attracted to females, [non-]exclusive; and other
specified personality disorder with narcissistic and antisocial traits. Dr. Kunz
opined that given the nature of G.B.'s various diagnoses, he had a "higher . . .
risk for sexual recidivism."
In describing G.B.'s offensive behavior as a juvenile and an adult, Dr.
Kunz stated G.B.'s history "indicate[d] a long-lasting and persistent . . .
pedophilic arousal that . . . started early on and . . . [was] associated with an
elevated risk of sexual . . . reoffense." The doctor found G.B. "display[ed] a
longstanding pattern of maladaptive personality traits[,] such as grandiosity,
superficial charm, lack of empathy, . . . callousness, [and] deceitfulness." And
8 A-1601-21
while Dr. Kunz scored G.B. at "one" on the Static-99R actuarial tool,
corresponding to the "average" risk group, he concluded G.B. was "at a . . .
substantially higher risk than the Static-99R would demonstrate or detect."
Moreover, Dr. Kunz testified, "one gets struck by the . . . extreme physical
abuse that [G.B.] subjected his daughter to, which indicates a degree of
emotional callousness and detachment, the fact that he was able to continue . . .
his abuse despite her screaming and clear experience of pain." Further, the
doctor stated G.B.:
revealed in treatment that although at the time of his
arrest in 1995, the focus and the formal charges were
on physical abuse, [G.B.] did . . . sexual[ly] abuse . . .
his infant daughter at that same time, specifically
digital penetration of her vagina, also applying
ointment on her genitals and anal region and getting
sexually aroused by that behavior.
Dr. Kunz also expressed concern that the day after G.B. was released from the
ADTC in 2007, he "went to the church where his wife and daughter attended,"
"even though he was prohibited from attending that church by his parole
officer," which "could indicate . . . [he] intended to reconnect and potentially
victimize the daughter again."
The doctor opined G.B. had not "had enough treatment," despite the length
of time he was civilly committed, and aware G.B. had "taken almost every
9 A-1601-21
module available to him." Dr. Kunz stated G.B. "still [did not] have a full
understanding of . . . the nature of his deviant arousal," was "simply unable to
explore some of [his] issues in enough depth, and . . . his personality traits [kept]
him from acknowledging the connections between the sexual and the physical
abuse that he perpetrated, and . . . was aroused to."
Further, the doctor testified G.B. was "not just a risk to his daughter, but
also to children outside the family . . . that he may encounter if he [was]
released." Dr. Kunz also opined G.B. "would have serious difficulty controlling
his sexual offending behavior if released at this time," and "his risk to sexually
reoffend in the foreseeable future if not recommitted to the STU for further
treatment" was "high."
Dr. Canataro testified she was a member of the Treatment Plan Review
Committee that conducted G.B.'s annual evaluation, and she had interviewed
G.B. "for a number of years." Thus, she was familiar with "his offending
history" and "his criminal background."
Dr. Canataro diagnosed G.B. with pedophilic disorder with sadistic
features, sexually attracted to females, non-exclusive type; narcissistic
personality disorder with antisocial and sadistic traits; and alcohol use disorder
in remission. She concluded that because G.B. was diagnosed with a personality
10 A-1601-21
disorder and pedophilic disorder, "the combination" "create[d] a high level of
risk." Further, she opined that based on his diagnoses, "psychopathic
personality traits," and "urges for sadistically violent behavior," G.B. was "able
to . . . have his sexual needs met with nothing holding him back."
Dr. Canataro, like Dr. Kunz, concluded G.B. scored "a one" on the Static-
99R actuarial tool. She explained that his "Static score increased one point"
because G.B. was "more open about the sexual abuse" that he committed against
A.B., "beginning in her infancy." She also stated, "because . . . those behaviors
were sexually motivated, . . . . that score of one [was] accurate."
Additionally, Dr. Canataro concurred with Dr. Kunz's opinion that G.B.
had not "had enough treatment . . . to adequately be able to control the impulses
he [had] from [his] disorders." She stated G.B. was "a highly dangerous
individual" who "presente[d] with a mild manner and [could] often dupe
professionals in[] his quest for . . . impression management."
Dr. Canataro testified G.B. performed "really well in treatment when . . .
giving feedback to other people[,]" but "when the feedback [was] . . . turned on
him and he [did not] like the feedback[, he] . . . either [became] very frustrated
and . . . argumentative, or . . . shut down." She pointed to feedback he received
after the August 2019 incident when he kept a magazine picture of children in
11 A-1601-21
bathing suits in his locker over a weekend and "didn't give it to staff until [the
following] Monday afternoon." She stated G.B. "became very upset, very
defensive in process group when they challenged him with playing with his
deviance."
Dr. Canataro concluded G.B. demonstrated a "lack of treatment
internalization" and his "risk to sexually reoffend if not recommitted to the STU
for further treatment" was "high." Further, she opined G.B. "would have serious
difficulty controlling his sexual offending behaviors if released at this time."
On the second day of the review hearing, Treadwell, G.B.'s friend,
testified. Treadwell stated he was affiliated with America's Keswick, an entity
providing counseling for men. He testified if G.B. was released from the STU
to attend a residential program offered by America's Keswick, G.B. could stay
at an all-male facility during the four-month program, be "dealt with from a
spiritual perspective[,]" receive "personalized counseling," and engage in "work
therapy." Treadwell added, "going to work is a big part of a man's recovery."
He testified he was "not aware" if America's Keswick "offer[ed] any relapse
prevention for sex offenders or arousal reconditioning-type therapy."
When Dr. Lorah testified, he confirmed he diagnosed G.B. with pedophilia
disorder, sexually attracted to females, non-exclusive type (which predisposed
12 A-1601-21
him toward sexual violence); other specified personality disorder with
narcissistic and borderline traits; and an alcohol-use disorder. Dr. Lorah
disagreed with the State's experts regarding G.B.'s score on the Static-99R
actuarial tool and testified he "scored [G.B.] at zero."
Dr. Lorah agreed with the State's experts that the relationship G.B.
cultivated in 2014 with a woman who worked at a daycare center and had a
young son was "ill-advised." He also acknowledged that when G.B. "finally
admitted to [the relationship] and started talking about it, . . . [G.B.] admitted
he was planning on having more children with this woman and . . . it could be
high risk for him because there was a [fifty-fifty] chance the child could be a
girl."
When asked on cross-examination if it was problematic that G.B. reported
using "chat lines with at least four women," Dr. Lorah stated, "I don't know what
he's doing on the chat lines." "[G]oing on these chat lines is a bad idea. . . . I
think that the potential for abuse is there." Moreover, he testified, "I don't think
it a great idea for anyone at the STU." Although he acknowledged G.B. "made
poor decisions in . . . initiating relationships," Dr. Lorah concluded G.B.
"demonstrated an ability to not be in a relationship and still function at the
STU, . . . and . . . abstain from sexual violence."
13 A-1601-21
Additionally, Dr. Lorah testified it was "essential" that G.B. engage in
"sex offender-specific treatment." He conceded that "to [his] knowledge,"
America's Keswick did not offer "sex-offender specific treatment," but he
endorsed G.B.'s attendance at its residential program. Finally, Dr. Lorah opined
G.B. was currently "less than highly likely to reoffend with a comprehensive
discharge plan."
G.B. was the last witness to testify. He acknowledged he has a paraphilic
disorder. He also stated his "deviant sexual arousal is" "to toddler females
within [his] family[,] and [his] compulsion [is] to act on that desire and
abuse . . . toddlers." G.B. admitted he sexually abused A.B. "at the same time
[he was] physically abusing her when she was under a year old." Further, he
conceded he resumed sexually abusing her "after the [family's] reunification[,]
when she was between [two] and [three] years of age," and that he continued to
sexually assault A.B. until she was seven years old. G.B. also testified that after
A.B. told her mother he was sexually abusing her, he "lied straight to [his ex-
wife's] face," telling her he "never touched [A.B.]" Additionally, he admitted
he "lied to manipulate [his] way out of . . . getting in trouble."
G.B. denied that his violent behavior toward A.B. during her infancy
"inspire[d] sexual arousal." He also denied trying to contact her or his ex-wife
14 A-1601-21
when he was released from the ADTC and went to the same church his ex-wife
had previously attended.
On December 31, 2021, the judge issued a lengthy oral opinion, finding
G.B. should "continu[e] to be involuntarily committed as a sexually violent
predator." The judge explained that in reaching this conclusion he "relied upon
both documentary and testimonial proofs adduced" at the hearing. Further, the
judge stated that, to the extent the testifying experts relied on information in
documents to assess G.B.'s risk of reoffending and those documents contained
hearsay, he found "the experts considered said information in a manner which
is similarly utilized by other experts within their respective fields."
Additionally, the judge stated:
unless I particularly indicate I am relying upon some
document or piece of information within a document
because it comes in under an exception to the hearsay
rule[,] . . . [N.J.R.E.] 803, [including] admissions by a
party, I am doing so either to support or reject the
opinions of any expert that I may find credible or not
credible and to explain in part why I may find said
expert credible or not credible. I am not relying on the
hearsay as fact to support my opinions.
Next, the judge outlined the bases for finding the State met its burden in
establishing the need for G.B.'s continued civil commitment, citing the SVPA
and our Supreme Court's holding in In re Commitment of W.Z., 173 N.J. 109
15 A-1601-21
(2002). He observed:
there are three prongs that must be proven by the clear
and convincing evidence standard by the . . . State.
First, that the resident [was] convicted of one or more
sexually violent offenses as defined under the SVPA.
Second, that the resident continues to presently suffer
from a mental abnormality and/or personality disorder
which affects their emotional, cognitive and/or
volitional functions and capacities such that, [third],
they are highly likely in the foreseeable future to
sexually reoffend if not continued to be committed to
the custody, care, and receiving further treatment at the
[STU].
Ultimately, it is the decision of this court that all three
prongs have been satisfied by the . . . State by the
required clear and convincing evidence standard.
The judge also placed his credibility findings for each witness on the
record. He found Dr. Kunz was a "highly credible witness," and accepted his
expert opinion "that [G.B.] is presently highly likely to sexually reoffend."
Similarly, the judge credited Dr. Canataro's testimony as "very forthright," and
agreed with her opinion that G.B. "is presently highly likely to sexually
reoffend, and is so predisposed[,] given his various mental health disorders,
[that] he's not highly likely to comply with conditions of release in the
community."
Additionally, the judge found Treadwell was "a very credible witness"
when he described the residential program at America's Keswick, but there were
16 A-1601-21
"limitations with regard to [Treadwell's] knowledge" of the program and
"limitations within the program [in terms of] sex offender specific treatment."
The judge concluded, "the program doesn't have any traditional qualified sex
offender treatment counselors."
Turning to the testimony of G.B.'s expert, the judge stated, "Dr. Lorah's
findings, conclusions and recommendations [were] not credible" and he
"seem[ed] to be trying to put together a patchwork defense . . . to cobble together
some theory of treatment which . . . [was] not well grounded in [G.B.'s]
offending history and/or the reality of his treatment." Moreover, the judge found
"Dr. Lorah ha[d] not really invested adequate time or thought . . . to [G.B.'s]
potential discharge to [America's] Keswick[,] . . . especially when it comes to
the sex offender component . . . to his treatment that would be absolutely
necessary in the event of discharge."
Finally, in assessing G.B.'s testimony, the judge stated, "[o]verall, [he] did
not find [G.B.] to be a credible witness." The judge explained, "[t]here [were]
so many holes in his testimony and inconsistencies with regard to his version of
events over the years." Additionally, the judge concluded G.B. engaged in
"problematic behaviors," including "tempt[ing] fate by going to [his ex-wife's]
church" after he was released from the ADTC, despite "the potential for his ex-
17 A-1601-21
wife and daughter to be there." The judge found G.B. provided "an odd, . . . not
credible explanation for . . . going there" and it "seem[ed] . . . his narcissistic
traits just took over and he was going to do what he wanted to do."
Other "problematic behaviors" cited by the judge included: G.B. keeping
an eighteen-month relationship with a woman secret until 2014, when it was
inadvertently discovered; G.B.'s participation in "chat lines" with various
women "against the advice of his own expert"; and "his express desire . . . fairly
recently . . . to conceiv[e] a child in a new relationship, [despite] the potential
for that child being a girl . . . that he would abuse sexually." Further, the judge
noted that in 2019, G.B. "had to take a floor and talk about his poor judgment
and the high-risk nature of" keeping a "photograph of children in bathing suits"
in his locker before turning it over to staff days later.
The judge found G.B. "seem[ed] to be less focused on treatment gains
now . . . . to get himself to the point of having a conditional discharge plan
ordered." Additionally, the judge determined G.B. was:
excellent at impression management. But he hasn't
drilled down deep enough into his deviant arousal, and
the . . . understanding of the physical and sexual abuse
of his daughter[,] and also his sisters[,] in a way that
meaningfully translates to gains with regard to his
overall treatment. He still has a way[] to go before it's
going to be appropriate to make a less than highly likely
finding and order a conditional discharge plan.
18 A-1601-21
Before concluding his findings, the judge made a passing reference to the
fact that, when he made his decision, he "applied the balancing test . . . set forth"
in the Court's decision in W.Z. However, he then briefly quoted from a passage
in our underlying decision in In re Commitment of W.Z., 339 N.J. Super. 549,
580 (App. Div. 2001),3 stating:
In order to determine if a person is 'likely to engage in
acts of sexual violence' a court must find, by clear and
convincing evidence, that the person has a propensity,
inclination or tendency[] to commit acts of sexual
violence and must establish, by clear and convincing
evidence, the degree of such a propensity. The court
must then weigh the person's degree of propensity
against the nature or seriousness of the acts he tends to
commit in order to determine the extent he poses a
threat to others.
[Ibid.]
Notably, after finding G.B.'s offenses were "at the highest level of horrific," the
judge also concluded, consistent with the standards enunciated by the Court in
W.Z., that G.B.:
suffers from a mental abnormality or personality
disorder that affects him emotionally, cognitively or
volitionally to such a degree that he is predisposed to
commit acts of sexual violence. If released[,] he would
have serious difficulty controlling his sexually violent
behavior to such a degree that he would be highly likely
3 The Court affirmed, as modified, our decision in W.Z., 173 N.J. at 133.
19 A-1601-21
within the reasonably foreseeable future to engage in
acts of sexual violence. (emphasis added).
. . . .
[T]here's no rational basis or means upon which this
court at this juncture could fashion a discharge plan for
[G.B.] under the facts of this case that would permit a
conditional discharge.
On January 3, 2022, the judge entered a conforming judgment, continuing
G.B.'s involuntary commitment.
II.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT'S APPLICATION OF A
BALANCING TEST THAT WAS SUPERSEDED BY
THE NEW JERSEY SUPREME COURT
COMPROMISED DUE PROCESS AND WAS
HIGHLY PREJUDICIAL TO G.B. REQUIRING
REVER[S]AL AND REMAND.
POINT II
THE EVIDENCE PRODUCED BY THE STATE WAS
INSUFFICIENT TO DEMONSTRATE THAT G.B.
POSES A THREAT TO THE HEA[L]TH AND
SAFETY OF OTHERS AT THE LEVEL
CONSTITUTIONALLY REQUIRED TO WARRANT
CONTINUED DEPRIVATION OF LIBERTY.
20 A-1601-21
POINT III
THE EVIDENCE PRODUCED BY THE STATE WAS
HEARSAY, STALE, AND OTHERWISE
INSUFFICIENT TO SUPPORT A LEGAL
CONCLUSION THAT G.B. IS "HIGHLY LIKELY"
TO REOFFEND AND CONTINUED
CONFINEMENT IS WARRANTED UNDER THE
SVPA.
A. THE 2007 CHURCH VISIT.
B. THE 2014 RELATIONSHIP.
C. THE 2019 CHAT CONVERSATIONS.
None of these arguments are persuasive.
The applicable law and our scope of review is well settled. Involuntary
civil commitment under the SVPA may occur after a sex offender's completion
of a custodial sentence when the offender "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."
N.J.S.A. 30:4-27.26. The SVPA defines "mental abnormality" as "a mental
condition that affects a person's emotional, cognitive or volitional capacity in a
manner that predisposes that person to commit acts of sexual violence." Ibid.
The mental abnormality or personality disorder "must affect an individual's
ability to control [their] sexually harmful conduct." W.Z., 173 N.J. at 127. A
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showing of an impaired ability to control sexually dangerous behavior will
suffice to prove a mental abnormality. Id. at 129; see also In re Commitment of
R.F., 217 N.J. 152, 173 (2014).
At an SVPA commitment hearing, the State has the burden of proving the
offender poses a threat:
to the health and safety of others because of the
likelihood of [their] engaging in sexually violent
acts. . . . [T]he State must prove that threat by
demonstrating that the individual has serious difficulty
in controlling sexually harmful behavior such that it is
highly likely that [they] will not control [their] sexually
violent behavior and will reoffend.
[W.Z., 173 N.J. at 132.]
At each review hearing, the trial court must address the committee's
"present serious difficulty with control over dangerous sexual behavior." Id. at
132-33. During the hearing, the State must establish by clear and convincing
evidence that commitment or continued commitment is warranted because it is
highly likely the individual will sexually reoffend within the reasonably
foreseeable future. See id. at 133-34; see also R.F., 217 N.J. at 173.
"[C]ommitting judges under the SVPA are specialists in the area," whose
"expertise in the subject [is entitled to] special deference." In re Civ.
Commitment of R.Z.B., 392 N.J. Super. 22, 36 (App. Div. 2007) (quoting In re
22 A-1601-21
Civ. Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)).
Accordingly, our review of a commitment decision under the SVPA is
"exceedingly narrow." In re Civ. Commitment of W.X.C., 407 N.J. Super. 619,
630 (App. Div. 2009) (citations omitted). A commitment determination will be
subject to modification on appeal "only where the record reveals a clear abuse
of discretion." Ibid. We also review the evidentiary rulings of the trial judge
for an abuse of discretion. Id. at 640.
In an annual review hearing under the SVPA, a judge is not precluded
from considering prior evaluations when making a commitment decision. Id. at
639-40 (quoting In re Civ. Commitment of A.E.F., 377 N.J. Super. 473, 492
(App. Div. 2005)). Moreover, in deciding whether the State has met its burden
in showing the need for an individual's ongoing civil commitment under the
SVPA, a judge may rely upon "the testimony of experts[,] and the risk
assessment instruments on which they rely," as they constitute "pivotal proofs
on the question [of] whether [an] individual is highly likely to offend again."
Matter of P.D., 243 N.J. 553, 568 (2020). Prior expert opinion testimony from
the initial commitment hearing also is admissible "[a]s long as the opinion
ultimately rendered at the initial commitment hearing is that of the witness based
on [their] own evaluation of the committee, prior offenses, and objective test
23 A-1601-21
data. . . ." W.X.C., 407 N.J. Super. at 640 (citing A.E.F., 377 N.J. Super. at
492). But "[t]he ultimate determination [regarding commitment] is 'a legal one,
not a medical one, even though it is guided by medical expert testimony.'" R.F.,
217 N.J. at 174 (quoting In re D.C., 146 N.J. 31, 59 (1996)).
"While out-of-court statements used to prove the truth of the matter
asserted are inadmissible hearsay, . . . an expert who substantially relies on
hearsay evidence for [their] opinion may testify at trial as long as the hearsay
information was of a 'type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject.'" W.X.C., 407 N.J.
Super. at 640-41 (quoting N.J.R.E. 703); see also N.J.R.E. 803(c)(6); In re
Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004) ("Reports
of the STU treatment teams [are] business records, admissible under N.J.R.E.
803(c)(6), which could be considered for their truth insofar as they factually
reported [the offender's] statements or refusals to discuss certain issues").
Governed by these standards, we discern no abuse of discretion by the
judge. In fact, his conclusion that the testimony of the State's experts clearly
and convincingly demonstrated G.B. continues to have mental abnormalities that
increase the likelihood that he will sexually reoffend if released from the STU
is well supported by the record. Although Dr. Lorah opined G.B. was not highly
24 A-1601-21
likely to sexually reoffend, the judge was "not required to accept all or any part
of" this expert's opinion. R.F., 217 N.J. at 174 (quoting D.C., 146 N.J. at 61).
In short, the judge had a reasonable basis to credit the testimony of the State's
experts over the more positive opinions expressed by Dr. Lorah; thus, his
findings command our deference.
We also reject G.B.'s argument that the judge's errant reference to our
opinion in W.Z. requires reversal. As the Court in W.Z. observed, we previously
viewed the likelihood determination of an individual reoffending "as if
comparable to a preponderance, or fifty-one percent chance of probability."
W.Z., 173 N.J. at 131 (citing W.Z., 339 N.J. Super. at 578-80). However, after
the United States Supreme Court decided Kansas v. Crane, 534 U.S. 407, 413
(2002),4 our Court made clear a precise standard for the degree of "lack of
control" need not be proven, and instead, "the State must prove by clear and
convincing evidence . . . it is highly likely that the person will not control [their]
sexually violent behavior and will reoffend." W.Z., 173 N.J. at 133-34. Thus,
the Court affirmed, as modified, our underlying decision. Id. at 133.
4 Crane was decided while W.Z.'s appeal was pending before our Supreme Court
and "held that a state may not civilly commit a sex offender without making a
determination about the person's 'lack of control' over [their] sexually violent
behavior." W.Z., 173 N.J. at 131 (quoting Crane, 534 U.S. at 411).
25 A-1601-21
Against this backdrop, we are persuaded that here, the judge understood,
and ultimately followed, the Court's holding in W.Z. In fact, he expressly
referred to the framework announced by the Court in W.Z. and found the State
proved by clear and convincing evidence G.B. "suffers from a mental
abnormality or personality disorder . . . to such a degree that he is predisposed
to commit acts of sexual violence." Further, the judge found "[i]f released,
[G.B.] would have serious difficulty controlling his sexually violent
behavior . . . [and] would be highly likely within the reasonably foreseeable
future to engage in acts of sexual violence." In making these findings, he
credited the testimony of the State's experts that G.B. was "presently highly
likely to sexually reoffend," (emphasis added), had had "insufficient treatment,"
and was "not highly likely to comply with conditions of release in the
community."
In sum, because we have no principled reason for second-guessing the
judge's factual or credibility findings, which are well supported on the record,
and his order of continued commitment is legally sound, we decline to disturb
the challenged order. G.B.'s remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.