Opinion
DOCKET NO. A-5394-12T2
04-03-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF J.B. SVP-661-12
Amy Beth Cohn, Deputy Attorney General, argued the cause for appellant State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief). Alison Perrone, Designated Counsel, argued the cause for respondent J.B. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief). Barbara Moses (Seton Hall University School of Law, Center for Social Justice, Civil Rights and Constitutional Litigation Clinic) argued the cause for amicus curiae American Civil Liberties Union of New Jersey and National Juvenile Defender Center (Gibbons P.C., attorneys; Lawrence S. Lustberg, Benjamin Yaster and Ms. Moses, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, St. John and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-661-12.
Amy Beth Cohn, Deputy Attorney General, argued the cause for appellant State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Cohn, on the brief).
Alison Perrone, Designated Counsel, argued the cause for respondent J.B. (Joseph E. Krakora, Public Defender, attorney; Ms. Perrone, on the brief).
Barbara Moses (Seton Hall University School of Law, Center for Social Justice, Civil Rights and Constitutional Litigation Clinic) argued the cause for amicus curiae American Civil Liberties Union of New Jersey and National Juvenile Defender Center (Gibbons P.C., attorneys; Lawrence S. Lustberg, Benjamin Yaster and Ms. Moses, on the brief). PER CURIAM
At the age of fifteen, respondent J.B. was charged in adult criminal court, and he pleaded guilty to the aggravated sexual assault of a child. He received a sentence of ten years in prison. He completed the prison sentence more than a year ago, on November 30, 2012. He remains confined pending this appeal because the State filed a petition seeking civil commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Judge Philip M. Freedman found that the State had not proven that respondent is a sexually violent predator. The State appealed, and we granted a stay of respondent's release. Despite respondent's heinous offenses, applying our standard of review, we affirm.
I.
Respondent was born in August 1988. In July 2002, at age thirteen, respondent became angry at a three-year-old boy, I.R., who was splashing water in a pool. Respondent pulled down I.R.'s swim trunks and tried to "eat" his penis. Respondent was adjudicated delinquent for harassment, placed on probation for two years, and referred for sex-offender treatment.
In early 2003, at age fourteen, respondent was at his mother's house while she was babysitting a five-year-old girl, S.G. S.G. annoyed and angered respondent. He penetrated her once or twice in the anus with his penis to "teach her a lesson." S.G. did not report this incident initially.
On January 31, 2004, at age fifteen, respondent was asked by his mother to watch several children, including a twenty-two-month-old girl, Z.H. Z.H. sat on his lap. When she cried because he would not give her a snack, he stuck his finger in her vagina, causing significant bleeding. She screamed, and he removed his finger. Two surgeries were required to repair the extensive damage around Z.H.'s vagina.
Respondent was charged as an adult with first-degree aggravated sexual assault on Z.H. N.J.S.A. 2C:14-2(a). In summer 2004, police learned of respondent's earlier sexual assault on S.G., for which he was charged as a juvenile. Respondent pled guilty to the adult charge pursuant to a plea agreement, and the juvenile charge was dismissed.
Respondent was referred for a psychological evaluation at the Adult Diagnostic and Treatment Center (ADTC). Dr. Jeffrey Singer, the State's psychologist, found insufficient psychological evidence to support a finding of sexual compulsivity, and recommended against sentencing respondent under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
In accord with the State's recommendation, the Criminal Part judge sentenced respondent to the custody of the Department of Corrections for ten years, with an 85% parole disqualifier and credit for time served. The judge required respondent to register as a sex offender under Megan's Law, imposed five years of parole supervision with sex-offense counseling, and sentenced him to community supervision for life.
From March 2005 to May 2008, respondent had sixteen infractions in prison, including disruptive conduct, lying, refusing to obey, threatening physical harm, and in December 2007 telling a female psychologist that he would "like to lick her p***y." In the following five years, however, respondent had no further prison infractions.
Before respondent completed his sentence, the State filed a petition seeking involuntary civil commitment under the SVPA. The initial psychiatrist for the State, Dr. Michael Kunz, found that respondent was not committable. The State obtained an evaluation by another psychiatrist, Dr. Roger M. Harris, who recommended commitment.
Judge Freedman held an evidentiary hearing, at which Dr. Harris and psychologist Dr. Christine Zavalis testified for the State. Dr. Kunz and psychologist Dr. Barry Zakireh testified for respondent. The judge credited both of respondent's experts, particularly Dr. Kunz, more than the State's experts. By order filed July 8, 2013, Judge Freedman dismissed the State's petition for civil commitment. The judge ordered respondent discharged. The judge stayed his judgment for twenty days.
We granted a continuing stay and accelerated the appeal. We later granted the motion of the American Civil Liberties Union (ACLU) and the National Juvenile Defender Center (NJDC) to file a brief as amici curiae.
II.
Under the SVPA, "[i]f the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.32(a). "If the court finds that the person is not a sexually violent predator," he "shall be discharged" if he has completed his prison term. N.J.S.A. 30:4-27.32(b).
There are three prerequisites for a person to be classified as a "sexually violent predator." N.J.S.A. 30:4-27.26. It is undisputed that respondent's conviction for aggravated sexual assault on Z.H. is a "sexually violent offense," thus satisfying the first prerequisite for commitment. Ibid. Second, the person must "suffer[] from a mental abnormality or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Ibid. 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 SVPA does not define "personality disorder." Whatever the nomenclature, "the mental condition must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002).
"'Likely to engage in acts of sexual violence' means the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." Ibid.
Third, the State must meet the showing required by our Supreme Court in upholding the constitutionality of the SVPA. The Court held that "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." W.Z., supra, 173 N.J. at 133-34.
III.
At its heart, this appeal challenges Judge Freedman's credibility determinations. The State argues that the judge "did not sufficiently credit the evidence" from the State's experts, and instead "credited the opinion of Dr. Kunz."
In considering the State's appeal, we must hew to our standard of review. In re Civil Commitment of R.F., _ N.J. _, _ (2014) (slip op. at 3-4). "We must defer to the findings of the trial judge when . . . the findings are based on sufficient evidence in the record, considering the record in its entirety, 'with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" In re Civil Commitment of M.L.V., 388 N.J. Super. 454, 468 (App. Div. 2006), certif. denied, 190 N.J. 255 (2007). A judge's "findings warrant particular deference when they are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy" on a cold record. State v. Rockford, 213 N.J. 424, 440 (2013) (citations and quotation marks omitted); R.F., supra, slip op. at 3-4, 29. "An appellate court should not overturn a trial court's findings because it 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." R.F., supra, slip op. at 29-30.
Furthermore, "'[t]he scope of appellate review of a commitment determination is extremely narrow.'" Id. at 29 (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. "A trial judge is 'not required to accept all or any part of [an] expert opinion,'" as "[t]he ultimate decision is 'a legal one, not a medical one.'" Ibid. "We must give the 'utmost deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." In re Civil Commitment of W.X.C., 4 07 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179 (2010), cert. denied, _ U.S. _, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). "Accordingly, 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.'" R.F., supra, slip op. at 30 (quoting D.C., supra, 146 N.J. at 58)). "So long as the trial court's findings are supported by 'sufficient credible evidence present in the record,' those findings should not be disturbed." Ibid.
Accordingly, we must "canvass the record" to determine if the judge's remaining findings on the second and third prerequisites were supported by sufficient credible evidence. Id. at 34.
IV.
The judge found that the State failed to prove the second prerequisite by clear and convincing evidence, namely that respondent "suffers from a mental abnormality or personality disorder" that makes him likely to engage in acts of sexual violence. N.J.S.A. 30:4-27.26. Among the diagnoses that have been found to satisfy this mental condition requirement are sexual sadism, pedophilia, and antisocial personality disorder (ASPD). In re Commitment of J.M.B., 197 N.J. 563, 587-91, 597, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Civil Commitment of J.P., 393 N.J. Super. 7, 18 (App. Div. 2007), overruled in part on other grounds by J.M.B., supra, 197 N.J. at 578 n.1.
Dr. Harris diagnosed respondent with sexual sadism, ASPD, and "rule out pedophilia, not exclusive." Dr. Zavalis diagnosed provisional pedophilia, and "personality disorder, not otherwise specified, with antisocial features." Judge Freedman, however, did not credit the diagnoses of these State experts, instead crediting Dr. Zakireh and especially Dr. Kunz, who found no paraphilia of any kind that would persist and cause reoffense.
The State notes that psychiatrists Dr. Marina Moshkovich and Dr. Tarita Collins diagnosed respondent with "pedophilia not otherwise specified" (NOS), and respectively diagnosed him with ASPD and "personality disorder NOS with [ASPD] traits." However, each doctor's role was simply to submit a "clinical certificate for a sexually violent predator" as required in a petition for commitment. N.J.S.A. 30:4-27.26, -27.28(c). The State did not call those doctors to testify before Judge Freedman, and did not rely on their certificates at the hearing. See W.X.C., supra, 407 N.J. Super. at 639.
One of the reasons the judge cited for crediting Dr. Kunz highlights the unusual nature of this case. Dr. Kunz is a State psychiatrist who testifies for the State regularly. Dr. Kunz was hired by the State to evaluate respondent on two occasions. He changed his initial opinion for commitment to an opinion against commitment, for two reasons. First, he realized that respondent was only fifteen-years old when committing his most recent offense, and therefore could not be diagnosed for pedophilia under the American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR or DSM). Second, he did more research on juvenile offenses, and found the literature cautioned against assuming juvenile behaviors will continue into adulthood. As a result, Dr. Kunz gave more weight to respondent's "impressive" developmental change since his offenses. We agree that Dr. Kunz's striking change in opinion was a valid factor in considering the credibility of his opinions, which the judge found to be "honest" and "exactly" correct. We next canvass the evidence regarding each of the diagnoses.
DSM-IV-TR states that to be diagnosed with pedophilia, an individual "must be age 16 years or older" at the time of the sexual activity with a child. Id. at 571.
A.
As the judge noted, the "only diagnosis of sexual sadism was by Dr. Harris." Dr. Harris conceded that sexual sadism was an infrequent diagnosis, applying to 5-10% of men who commit sexual offenses. Nonetheless, he found the diagnosis was strongly supported because, in each offense, respondent wanted to inflict pain on the child and did so through sexual acts.
By contrast, the State's psychologist, Dr. Zavakis, stated she would not "go as far as to say that [respondent] had sexual sadism," though there were "sadistic elements" in his offenses. The defense psychologist, Dr. Zakireh, absolutely disagreed with Dr. Harris's diagnosis of sexual sadism. Dr. Zakireh noted, and the judge credited, that sexual sadism was very rare, particularly in juveniles.
Dr. Kunz reviewed Dr. Harris's report and specifically rejected his diagnoses of sexual sadism. Dr. Kunz found that respondent did not meet the crucial requirement for sexual sadism, namely that the person derives sexual pleasure from inflicting physical or psychological suffering on another person. Dr. Kunz stressed that respondent's sexualized violence did not mean that he sought or derived sexual pleasure out of that behavior. The judge specifically credited each of Dr. Kunz's reasons.
One of the criteria for sexual sadism requires acts "in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person." DSM-IV-TR, supra, at 574.
Dr. Harris conceded that a diagnosis of sexual sadism is impossible unless the infliction of pain causes sexual arousal. Dr. Harris opined that each of respondent's offenses showed sexual gratification, but later conceded that there was no evidence that he was sexually aroused during the incident in the pool. Dr. Harris noted respondent was erect when he penetrated S.G., but Dr. Kunz found no sexual sadism because respondent was already aroused before the assault.
Dr. Harris acknowledged that respondent had denied sexual arousal or sexual motivation towards Z.H. Nonetheless, Dr. Harris emphasized that, when Dr. Singer interviewed respondent, he stated: "I think the only reason I did it was that I was horny and she was the only other person around." However, Judge Freedman found Dr. Harris had misconstrued and unduly relied on this statement. As the judge pointed out, Dr. Singer treated respondent's explanation as "essentially 'I don't know.'" As Dr. Kunz noted, Dr. Singer found no physical indicia of sexual arousal or gratification, and concluded that there was no evidence of sexual compulsivity.
Dr. Kunz also emphasized that in the S.G. and Z.H. incidents, respondent stopped when the girls cried. Dr. Kunz believed that was a strong argument against a diagnosis of sexual sadism, because a sexual sadist would be aroused by such suffering. The judge credited Dr. Kunz's opinions.
Judge Freedman found there was little evidence to justify Dr. Harris's diagnosis of sexual sadism, and no evidence of the "recurrent and intense sexual arousal from the physical or psychological suffering of another person" that the DSM requires. The judge instead credited Dr. Kunz's testimony that there were other explanations for the sexual violence, including respondent's vindictiveness and anger. Under our standard of review, there was sufficient credible evidence to support the judge's finding.
B.
Dr. Harris issued a diagnosis of "rule out pedophilia, not exclusive," rather than a formal diagnosis of pedophilia, because it was unclear that respondent had "a separate arousal to children that was not fused with his aggressive impulse to inflict pain." Dr. Harris conceded that a person when committing sexual acts must be at least sixteen-years-old to be diagnosed with pedophilia under the DSM, but he considered the DSM to be just "a guidebook." Dr. Zavalis's diagnosis of pedophilia was provisional because respondent offended before he was sixteen-years-old.
"Rule out" "is typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained." Alvin E. House, DSM-IV Diagnosis in the Schools 33 (2002).
A "provisional" diagnosis is used to indicate "a significant degree of diagnostic uncertainty." DSM-IV-TR, supra, at 5.
Dr. Harris found it hard to believe that respondent could offend against such young children "for sexual gratification," despite having sexual outlets with his peers, "without invoking pedophilic arousal." Dr. Zavalis similarly found "some evidence of pedophilic arousal." The judge rejected this reasoning, having found that "sexual gratification is missing in this case."
Dr. Kunz found that respondent did not meet the criteria for a diagnosis of pedophilia, both because respondent's age at the time of his offenses precludes a formal diagnosis, and because his offenses were not driven by sexual attraction to children in any event. The judge credited Dr. Kunz.
Like the other experts, Dr. Kunz noted the absence of evidence that respondent "groomed" or enticed the victims, as is common with pedophilia. Dr. Kunz found respondent's offenses were instead sudden and impulsive acts.
Further, respondent was sexually active and had consensual sex with many partners approximately his own age, and was attracted to women rather than children. As Drs. Zavaris and Zakireh noted, respondent looked at adult pornography, and there was no evidence that he looked at child pornography. Given that pedophilia requires intense sexual attraction to prepubescent children at least five years younger than the offender, DSM-IV-TR, supra, at 571, these facts support a different explanation for respondent's offenses.
Dr. Kunz emphasized that respondent had himself been sexually abused at age six or seven, repeatedly being forced to have oral and anal sex by an older cousin as a form of punishment. Dr. Kunz believed respondent was reenacting that type of punishment. Indeed, respondent told doctors that his cousin sexually abused him to teach him a lesson, and that he sexually abused his victims to teach them a lesson. Dr. Zakireh similarly found "tremendous support" that respondent was motivated by anger arising from his own sexual victimization, and thus did not meet the criteria for pedophilia.
Judge Freedman found that "a diagnosis of pedophilia is inappropriate" both because of the DSM's age requirement and because it was "not clear" that respondent is aroused by children. The judge credited Dr. Kunz's reasons for rejecting the diagnosis. We cannot say that there is insufficient credible evidence to support the judge's finding.
C.
Dr. Harris opined that respondent clearly met the requirements for ASPD. Dr. Harris noted that respondent showed remarkable callousness by committing his sex offenses at an early age, that his sixteen prison infractions showed antisocial attitudes, and that his comment to the female psychologist demonstrated sexualized aggression. Dr. Harris conceded that the subsequent absence of infractions showed some maturation by respondent, but opined that he still meets "most of the criteria" for ASPD.
ASPD is defined as "a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood and early adolescence and continues into adulthood." DSM-IV-TR, supra, at 701.
Dr. Zavalis did not diagnose respondent with ASPD because respondent had not exhibited any behavioral issues since May 2008. She felt that showed respondent was more mature, had better behavioral control, and could manage his aggression much better. She based her diagnosis of "personality disorder, not otherwise specified, with antisocial features" on his earlier behavior, but conceded that his youth could have been a significant factor. As another basis for finding a predisposition to acts of sexual violence, she cited his callousness when he committed the offenses, but conceded she did not detect that callousness in their recent interview.
Dr. Zakireh found that the evidence supporting an ASPD diagnosis was mitigated over recent years. He pointed out respondent's institutional behavior was significantly improved, his attitudes no longer reflected severe antisociality, his maturity was greater, and he had avoided sexually inappropriate expressions and behavior. Dr. Zakireh also noted that antisociality was not as good a predictor of sex offense recidivism as sexual deviance.
Dr. Kunz indicated that ASPD was an inappropriate diagnosis if the offensive conduct does not occur after age fifteen. Dr. Kunz pointed out that respondent had a spotless record in prison since May 2008, was diagnosed and treated for mood disorders which may explain his prior behavior, and expressed sincere remorse. Because those facts were inconsistent with ASPD, Dr. Kunz found that respondent currently does not meet the criteria for ASPD. The judge credited this conclusion.
Dr. Kunz found that respondent's early prison misconduct was caused by a conduct disorder. Dr. Kunz noted that only a quarter of adolescents who have conduct disorder develop ASPD or sexually reoffend as adults. Dr. Kunz found that respondent had matured and resolved those issues, and that he no longer had a conduct disorder. The judge credited Dr. Kunz's opinions. The judge's findings were supported by sufficient credible evidence.
"The essential feature of Conduct Disorder is a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated." DSM-IV-TR, supra, at 93.
D.
Because Judge Freedman found respondent did not have the requisite "mental abnormality or personality disorder" causing a likelihood of sexual-offense recidivism, respondent could not be committed under the SVPA. N.J.S.A. 30:4-27.26. "'[T]he psychiatric diagnosis, and the severity of the mental abnormality itself must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.'" W.Z., supra, 173 N.J. at 125 (quoting Kansas v. Crane, 534 U.S. 407, 409, 122 S. Ct. 867, 870, 151 L. Ed. 2d 856, 862 (2002)). The SVPA does not permit the State to confine a person merely "because it is reasonably likely that he will not be able to abide by all of society's laws or norms." R.F., supra, slip op. at 28.
V.
In any event, Judge Freedman also found that the State failed to prove by clear and convincing evidence the third prerequisite for commitment, namely that respondent "has serious difficulty controlling his . . . harmful sexual behavior such that it is highly likely that [he] will not control his . . . sexually violent behavior and will reoffend." W.Z., supra, 173 N.J. at 133-34. We examine that finding.
Dr. Harris stated that the mental conditions he diagnosed affected respondent emotionally, cognitively, and volitionally, and therefore put respondent at a higher risk to sexually reoffend because he would have serious difficulty controlling his harmful sexual behavior. Dr. Harris added that those mental conditions do not remit spontaneously but only through treatment, and that respondent had not had enough treatment. For those reasons, Dr. Harris found he was highly likely to reoffend.
Although Dr. Zavalis agreed with Dr. Harris that respondent had not received enough training, she noted that in prison he did receive some mental health treatment and anger management training. She opined that this treatment provided important coping techniques, and that respondent's behavior since May 2008 indicated he benefitted from the treatment. She found that respondent showed "insight" and "genuine remorse." Dr. Zavaris found respondent fell within the "highly likely" category, although at the lower end.
Dr. Kunz noted that respondent's anger management programs had provided enough treatment regarding his violence and anger, and that he had a "very sincere" interest in controlling his sexual behavior. The judge disagreed with Dr. Zavalis's statement that respondent's "showing of remorse and his better control as exhibited by his behavior was not enough to lower his risk below highly likely."
To show respondent was at a high risk to sexually reoffend, Dr. Harris used the risk factors from the Static-99 test, the J-SOAP-II test, and the Mann, Hanson and Thornton (MHT) characteristics. He conceded, however, that the Static-99 was an inappropriate test for juveniles who offended at age fifteen or earlier. He also admitted that J-SOAP-II is a predictor of antisocial offenses but not a strong predictor of sexual offenses. Further, he agreed that the MHT characteristics were based on research on adults. Dr. Zavalis did score the Static-99 test, contrary to its rules, but conceded that not much weight could be placed on the scoring. She also used the SVR-20 test, but that too was designed for use on adults.
"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." R.F., supra, slip op. at 13 n.9. Its actuarial data 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)).
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Dr. Zakireh testified that the Static-99 test and MHT characteristics were inapplicable, and that the J-SOAP-II should not be used to predict behavior after age twenty-one. Dr. Kunz agreed that the score on a J-SOAP-II was not predictive, that the use of risk factors designed for adults such as the MHT characteristics requires caution, and that the Static-99 test warns against using the test on persons who only offended in early adolescence. The judge agreed with Dr. Kunz's opinions that Static-99 or similar tests could not be used, that the factors could be considered, and that those factors did not indicate that respondent was highly likely to sexually reoffend.
Dr. Kunz opined that respondent's offenses had largely stemmed from his conduct disorder, hyper-sexuality, and reenactment of his own sexual victimization. Dr. Kunz believed that through maturation and his anger management treatment, those factors had been mitigated. Dr. Kunz found that the twenty-four-year-old respondent no longer had conduct disorder or sexual deviancy, was not evidencing hyper-sexuality, and had stabilized his behavior. Therefore, Dr. Kunz concluded that the risk had been sufficiently reduced, that respondent did not have a high risk of sexual recidivism, and that he did not meet the criteria for civil commitment. Dr. Zakireh similarly found that respondent's predisposition had decreased, that his risk was low, and that he did not meet the criteria for civil commitment.
As Judge Freedman recognized, "'previous instances of violent behavior are an important indicator of future violent tendencies.'" Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501, 512 (1997). Nonetheless, the judge credited Dr. Kunz's testimony that respondent was not highly likely to recidivate, that the behaviors that resulted in his offenses were "driven by time-limited conditions," and that those behaviors had not persisted. The judge found that respondent would not have serious difficulty controlling his sexually violent behavior, and did not meet the level of risk required for civil commitment.
Further, the judge noted that, but did not rely upon, the fact that respondent would be subject to community supervision for life and GPS monitoring. These conditions were appropriate for the judge to consider. R.F., supra, slip op. at 36-37. Further, "[a] person discharged by the court shall have a discharge plan prepared by the treatment team at the facility designated for the custody, care and treatment of sexually violent predators." N.J.S.A. 30:4-27.37; see N.J.S.A. 30:4-27.32(b); R.F., supra, slip op. at 37-39.
As our Supreme Court has recently stated, "[t]he experienced judges assigned to hear these cases have the difficult task of assessing expert testimony that often is in conflict, making factfindings about events described from varying viewpoints, and ultimately predicting the probability of a person's future conduct." R.F., supra, slip op. at 2. Here, "a judge who sat regularly on SVPA cases and who was a specialist in the area came to a reasoned conclusion based on sufficient credible evidence in the record." Id. at 35. Judge Freedman reviewed the expert testimony and documentary evidence in detail, and was therefore "authorized to discount an expert opinion that [he] believed was at odds with the record and not as well grounded as another expert opinion." Ibid. The judge's findings were supported by substantial credible evidence.
Amicus curiae ACLU and NJDC have filed a brief with this court arguing that the SVPA cannot be constitutionally applied to a person who was a child when he committed his last sex offense. Because we uphold Judge Freedman's factual findings that respondent cannot be committed under the SVPA, we decline to reach those constitutional arguments. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Moreover, "[c]ourts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 564 (2006) (citation omitted).
Accordingly, we affirm Judge Freedman's denial of the State's petition for civil commitment, and remand to the trial court to allow the treatment team to formulate an appropriate discharge plan. R.F., supra, slip op. at 39. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION