APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
I/M/O THE COMMITMENT
OF JJF.
___________________________
Argued: November 6, 2003 - Decided: January 27, 2004
Before Judges King, Lintner and Lisa.
On appeal from the Superior Court of New Jersey, Law Division, Essex County,
SVP-214-01.
Stanley Shur, Assistant Deputy Public Defender, argued the cause for appellant JJF (Yvonne
Smith Segars, Public Defender of New Jersey, attorney; Mr. Shur, on the brief).
Mary Beth Wood, Deputy Attorney General, argued the cause for respondent State of
New Jersey (Peter C. Harvey, Attorney General of New Jersey, attorney; Patrick DeAlmeida,
Deputy Attorney General, of counsel; Ms. Wood and Dina Mikulka, Deputy Attorney General,
on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
KING, P.J.A.D.
These three appeals, A-6175-01T2 (Appeal-1), A-2744-02T2 (Appeal-2), and A-3946-02T2 (Appeal-3), concern the involuntary
civil commitment of JJF under the New Jersey Sexually Violent Predators Act (SVPA).
JJF challenges his continued commitment as a sexually violent predator. We affirm, but
remand in part for consideration of a conditional discharge if supporting proofs are
presented at the next scheduled commitment hearing.
In 1999 the Legislature adopted the Sexually Violent Predators Act (SVPA), codified at N.J.S.A. 30:4-27.24 to 30:4-27.38. Through the SVPA the Legislature sought to "modify the involuntary civil commitment process in recognition of the need for commitment of those sexually violent predators who pose a danger to others should they be returned to society." N.J.S.A. 30:4-27.25c. The SVPA defines "sexually violent predator" as
a person who has been convicted, adjudicated delinquent or found not guilty by
reason of insanity for commission of a sexually violent offense, or has been
charged with a sexually violent offense but found to be incompetent to stand
trial, and 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.]
When it appears a person may meet the criteria of a sexually violent
predator, the agency with jurisdiction, usually Corrections or Human Services, gives written notice
to the Attorney General ninety days, or as soon as practicable, prior to
the anticipated release from confinement. N.J.S.A. 30:4-27.27. A judge will then hold a
hearing to determine whether the person should be committed. If the court finds
by clear and convincing evidence that the person needs involuntary commitment as a
sexually violent predator, the court shall issue an order authorizing the involuntary commitment
to a facility designated for the custody, care and treatment of sexually violent
predators. N.J.S.A. 30:4-27.32. Once a person is committed, he receives an annual review
hearing, under N.J.S.A. 30:4-27.35, twelve months from the date of the first hearing
and annually afterwards. N.J.S.A. 30:4-27.36 gives the person's treatment team authority to recommend
the person's release before the annual review hearing if "the person's mental condition
has so changed that the person is not likely to engage in acts
of sexual violence if released."
If the court finds that the person is not a sexually violent predator,
the person is discharged or returned to complete his term of incarceration. N.J.S.A.
30:4-27.32. If discharged, N.J.S.A. 30:4-27.32c(1) specifically authorizes a judge to order a conditional
discharge if the Department of Human Services so recommends and "the court finds
that the person will not be likely to engage in acts of sexual
violence because the person is amenable to and highly likely to comply with
a plan to facilitate the person's adjustment and reintegration into the community so
as to render involuntary commitment as a sexually violent predator unnecessary for that
person."
For nearly two years, JJF, now age sixty-eight, has been committed under the SVPA at the Special Treatment Unit (STU) at Kearny, Hudson County. The Attorney General petitioned for involuntary commitment in late 2001 as JJF approached the end of a prison term for various sex offenses against children.
The sex offenses that gave rise to JJF's civil commitment began in 1985. On October 7, 1985 JJF pled guilty to criminal sexual contact with a boy, age thirteen, and aggravated sexual assault against another boy, age eleven. Dr. Peter Leavitt, Ph.D., the principal clinical psychologist at the Adult Diagnostic and Treatment Center at Avenel, reported in late 1985:
The instant offense[s] consisted of [JJF] touching a 13-year old boy on his
thighs, buttocks and penis on three occasions, and his fondling and putting the
penis of an 11 year old boy in his mouth. This occurred from
May 1, 1985 to August 15, 1985. [JJF] initially stated that he attempted
to touch the 13 year old boy's genitals once or twice and attempted
to perform fellatio with the 11 year old, but that the boy pushed
his head away. The mothers of both boys have indicated that the incidents
have had a bad effect on the boys and their families.
JJF was sentenced to twenty years in state prison in 1985. He was
paroled on January 7, 1992.
After his January 1992 release JJF lived in a side-by-side residential duplex in
Elmwood Park, Bergen County. The other occupants were a married couple and their
two sons, DL, age three, and DAL, an infant. On November 16, 1993
JJF was again arrested and charged with sexual assault, five counts of endangering
the welfare of a child and four counts of lewdness.
The events leading to the 1993 arrest include one occasion in August 1993
when DL's father was unloading his car. After the father left DL unattended
with JJF, DL ran to his father screaming that JJF just showed him
his "pee-pee." On a different occasion, another neighbor testified that in October 1993,
his son, age seven, came into the family home "jumpy." The neighbor went
into the backyard and saw JJF leave his apartment naked. JJF's landlord also
testified she saw JJF standing naked facing the neighbor's fence while the neighbor's
children were playing in the yard.
In April 1995 a jury found JJF guilty of endangering the welfare of
a child and lewdness for the October 1993 events. In 1998, we affirmed
these convictions. He was acquitted of charges stemming from the August 1993 incident.
JJF's scheduled release date from prison was December 7, 2001.
Meanwhile, JJF was convicted in December 1994 (prior to the April 1995 trial)
of two counts of criminal sexual contact arising out of the touching of
two boys in a bowling alley. He was sentenced to probation on these
charges.
On November 28, 2001 the Attorney General filed a petition for civil commitment
under N.J.S.A. 30:4-27.28. The final hearing began on April 16, 2002. The hearing
continued for a second day on June 11, 2002. Judge Freedman conducted the
proceedings at the Northern Regional Unit at Kearny. The Attorney General presented as
witnesses psychiatrist Dr. Stanley Kern, M.D. and psychologist Dr. Jeffrey C. Singer, Ph.D.
JJF alone testified against his commitment.
Dr. Kern thought JJF was more likely than not to sexually reoffend in
the foreseeable future unless confined. Dr. Kern diagnosed JJF with pedophilia. He based
his opinions on JJF's history and preceding offenses. Dr. Kern thought significant that
JJF reoffended while on parole after his 1992 release from prison. This showed
"he had some kind of treatment that was apparently totally ineffective on an
outpatient basis." Dr. Kern said, "I think he requires intense treatment on an
inpatient basis." JJF also scored an eight on both the Minnesota Sex Offender
Screening Tool Revised (MnSOST-R) and Static-99, indicating a high risk to reoffend.
The Deputy Attorney General presented Dr. Kern with a document indicating that, upon
JJF's release in January 1992, JJF agreed to contact the therapy center if
he felt the need for support or other therapeutic services. Dr. Kern testified
he did not see any evidence JJF ever tried to contact the help
center during that period. To Dr. Kern, this showed JJF was not going
to do anything to control his impulses or to seek help and avoid
another offense.
Like Dr. Kern, Dr. Singer believed there was a substantial risk JJF would
reoffend. Dr. Singer examined JJF on May 7, 2002. He reviewed various psychological
tests performed on JJF, including an intellectual assessment (ADCT), objective personality test (MMPI-2),
and psychosexual assessment (MSI-II). He also evaluated JJF's results on various risk assessments,
including the Static-99 and Sexual Violence Risk-20 (SVR-20).
Dr. Singer concluded JJF had paraphilia. He observed "a substantial compulsive quality" to
JJF's actions. He particularly noted JJF had an antisocial personality disorder that is
"severe, recalcitrant, and debilitating." Dr. Singer testified JJF presents "one of the strongest
anti-social personality disorders I've ever seen." "And," he said, "that type of character
structure makes it easy to violate the rights of others. Rejects society's norms.
And what's particularly poignant here is that throughout [JJF's] life there really has
never been any demonstrable results that he's . . . ever changed."
Dr. Singer concluded JJF posed a moderate to significant level of risk for
sexual offense recidivism and required specialized sex offender-specific therapy. He recommended JJF's commitment.
JJF presented himself as the sole witness at the final hearing. He admitted
to committing the various sex offenses that led to his imprisonment. He said
he did not have any current sexual urges or fantasies involving children, or
any current deviant desires, and said he was impotent.
JJF said he had no desires to reoffend, but "just want[s] to be
myself, and . . . live the rest of my life out as
an ordinary citizen, to have people proud of me." He claimed he had
no problems complying with prison rules, and denied exhibiting impulsive behavior in prison.
He said the fear of dying in prison would give him motivation to
avoid future problems.
After the completion of testimony on June 11, 2002 Judge Freedman ordered the
commitment of JJF. He found the State proved that JJF: (1) was convicted
of a sexually violent offense, (2) suffers from a mental abnormality or personality
disorder, and (3) by clear and convincing evidence, is likely to engage in
acts of sexual violence if not confined in a secure facility. N.J.S.A. 30:4-27.26.
Judge Freedman was "satisfied that faced with the issue of . . .
what would happen on final release today, I think [JJF] clearly meets the
criteria of the [SVPA] . . . . " Judge Freedman observed,
[JJF] has done criminal acts, which are related, although not specifically sexually violent
offenses under the statutory definition, are clearly related to those kinds of offenses,
are a step towards them, and that given the opportunity I think, there's
no question in my mind, he would . . . engage in them
again, because he does not have any idea of why he does it,
what causes him to do it, what causes him at . . .
the age of 50 to start doing it, and I think that's what
makes him extremely dangerous.
So I think that he does meet the criteria, and he has a
substantial inability to control his behavior as is shown by his record, and
he needs at least some treatment here before he can be considered for
release, so he can get some idea and some grasp on the reasons
behind what he does.
Judge Freedman set a review hearing date of December 4, 2002.
On July 26, 2002 JJF filed a notice of appeal, which gave rise
to Appeal-1. On November 18, 2002 we granted JJF's request for a temporary
remand in light of the Supreme Court's decision in In re Civil Commitment
of W.Z.,
173 N.J. 109, 129-30 (2002) (
holding that an individual who has
committed a sexual offense poses a threat to the health and safety of
others if found, by clear and convincing evidence, to have serious difficulty in
controlling harmful sexually violent behavior such that it is highly likely that the
individual will reoffend).
Before the remand hearing was held, another review hearing was scheduled for December
6, 2002. Judge Freedman believed the December 6, 2002 review hearing mooted the
reconsideration of the initial hearing on remand, but he did not want to
"create unnecessary issues for the Appellate Court" so he heard both the initial
decision, now on remand, and the review hearing.
The hearing took place on December 6, 2002 and continued on January 16,
2003. As to the initial commitment on remand, he quoted various observations he
made at the initial hearing on June 11, including his opinion that there
existed "clear evidence back in '85 and in '93 of a serious inability
to control behavior." Judge Freedman cited his earlier opinions that JJF “has very
little, if any, understanding of why he did what he did, virtually none,"
and that there was no question JJF had a propensity and a compulsivity
to do what he did.
Judge Freedman concluded,
So I think that he does meet the criteria and he has a
substantial inability to control his behavior. And as I indicated before, that substantial
inability really equates to a high likelihood and . . . I don't
have any question that he met the standards of
W.Z. and in [Kansas
v. Crane,
534 U.S. 407,
122 S.Ct. 867,
151 L.Ed.2d 856 (2002)]
at the time of the last hearing and he does so now.
On March 25, 2003 Judge Perretti issued an order memorializing Judge Freedman's oral
opinion of January 16 concerning the remand. She wrote,
The evidence presented by the State of New Jersey at the commitment hearing
which was the subject of [Appeal-1] established by clear and convincing evidence that
[JJF] had substantial difficulty in controlling his sexual behavior and that he was
highly likely to engage in acts of sexual violence if not committed at
the time of the commitment hearing in question. For reason[s] set on the
Record before Judge Freedman on January 16, 2003.
On April 3, 2003 JJF filed an appeal of Judge Perretti's order of
March 25. This appeal became Appeal-3.
In addition to deciding the issue on remand, Judge Freedman also took testimony
pertaining to the most recent review in January 2003. The only witness to
appear for either side was the State's Dr. Kern. Dr. Kern completed a
report reviewing JJF's progress since Judge Freedman issued the initial commitment order on
June 11, 2002.
In his report summary and recommendations, Dr. Kern said:
[JJF] has been charged with several sexual offenses and was convicted of three
sexual offenses involving a number of victims. In addition, he has a long
criminal history involving non-sexual offenses. His group notes indicate that he was defensive
initially, but he has discussed his offenses and generally has been active and
attentive in his group sessions. In his interview with me he tried to
minimize his offenses and, to some degree, justify his behavior. A discussion with
one of his therapists . . . revealed that [JJF] does not believe
that he should be in STU because he "does not have deviant arousal;
only did it once and then he was coming out of prison and
was lonely." In his mind, going out in his backyard naked was "just
stupid and had nothing to do with sexual offending." In treatment he tends
to be defiant. He is invested in treatment to get out and not
to improve or get better.
It is my opinion that [JJF] has a disorder which causes him to
have serious difficulty in controlling his harmful behavior such that it is highly
likely that he will not control his sexually violent behavior and will reoffend,
thus meeting the standard of being classified as a Sexually Violent Predator (N.J.S.A.
30:4-27). Therefore, he required continued confinement for care, custody and treatment. It is
my opinion that his disorder affects his cognitive, emotional and volitional functions. I
hold these opinions to within a reasonable degree of medical certainty.
On January 16, 2003 Judge Freedman explained why JJF's commitment should continue for
purpose of the review hearing. Progress notes made by STU psychologists while observing
JJF in group therapy indicated minimal participation. Judge Freedman said the submitted exhibits
showed a substantially worse picture of JJF's offenses compared to JJF's portrayal of
his offenses during group therapy. Judge Freedman mentioned that JJF bought an $850
Yamaha bike for one of his 1985 victims, a boy, age thirteen. Judge
Freedman reviewed Dr. Kern's testimony that JJF appears more concerned about leaving STU
than improving himself.
Judge Freedman concluded:
I am satisfied after all of the evidence that I have reviewed, as
I indicated, by . . . clear and convincing evidence, that [JJF] does
suffer from a mental abnormality and a personality disorder . . . .
His antisocial personality disorder, undoubtedly, is not strong as it was, but it
clearly still exists.
. . .
I think it's clear from the testimony of the experts in the record
that he is clearly disposed, without any question, to engage in acts involving
young boys. That he has a very substantial inability to control his behavior.
That he has no idea what motivates him. The testing shows he's not
motivated to treatment. I think my review of the record shows he's not
motivated for treatment here. That I think the nature of . . .
what he tends to do, contrary to the argument of counsel, is serious.
Does have a substantial and deleterious effect on children. Creates a substantial danger
to the health and safety of children in the community. And that he
has a wide repertoire, as Dr. Singer, pointed out, of various things that
he does.
Here he does, after a long life of crime, committed these offenses, had
some sex offender treatment, got himself a good job, was accepted on the
job, was living -- worked there lengthy hours, making money, had is own
place, and basically, his antisocial personality disorder has . . . been tampered
down by time and what does he do. Gets himself right back into
it, because he can't control what he does. And doesn't know why he
does it and that's what makes him dangerous.
And that's what makes me come to the conclusion that if he were
released, he would be highly likely, within the reasonably foreseeable future . .
. to do similar things again. So for those . . . reasons,
I will continue his commitment.
Judge Freedman set the next review hearing date for November 19, 2003. This
hearing awaits our opinion on this appeal.
On February 3, 2003 JJF appealed Judge Freedman's decision to continue his commitment.
This appeal became Appeal-2. On May 14, 2003 Appeal-1, Appeal-2 and Appeal-3 were
consolidated. To summarize, Appeal-1, filed July 26, 2002 is an appeal of Judge
Freedman's decision to commit JJF after the final hearing of April 16 and
June 11, 2002. Appeal-3, filed April 3, 2003 is an appeal of Judge
Perretti’s decision on temporary remand that the April-June 2002 final hearing disposition was
proper. Appeal-2, filed February 3, 2003 is an appeal of Judge Freedman's January
16, 2003 review hearing decision that JJF remain committed.
The appellant presents two issues on this appeal. He asserts:
POINT I - THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT CONSIDERING OR GRANTING CONDITIONAL RELEASE WHERE THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT JJF WOULD BE SUBSTANTIALLY LIKELY TO COMMIT A SEXUALLY VIOLENT OFFENSE IN THE REASONABLY FORESEEABLE FUTURE IF HE WERE SO DISCHARGED.
POINT II - THE TRIAL COURT VIOLATED JJF'S RIGHT TO DUE PROCESS IN
REPEATEDLY INTERRUPTING COUNSEL, INTERJECTING ITS OWN OPINION IN PLACE OF WITNESSES, HARSHLY ADDRESSING
JJF, AND GENERALLY EXHIBITING BIAS TOWARD THE COMMITTEE.
We have no doubt that the evidence in this case was sufficient to
meet the "highly likely" to reoffend standard expressed in W.Z. But the thrust
of JJF's appeal is directed towards the right to a conditional discharge.
JJF claims Judge Freedman "erred as a matter of law" because he
refused to consider conditional discharge as a possible disposition for JJF. JJF's counsel
argues this refusal led to a second error, namely the failure to order
such a discharge. JJF says Judge Freedman should have looked at certain variable
factors in determining the likelihood of recidivism under the third prong, highly likely
to reoffend, particularly the availability of a conditional release plan and the "obvious
sincerity and keen motivation expressed by JJF to submit to any condition and
participate in any structured supervision in order to avoid reoffense and so that
he would not die in a prison setting."
In JJF’s testimony at his initial commitment hearing, JJF asked for consideration for
a conditional release. In his initial finding on June 11, 2002 the judge
found that "it’s more likely than not that [JJF] would engage in acts
of sexual violence if he were released now without any – without any conditions
of any kind." (emphasis added.) The judge did not consider a conditional release
in any of the proceedings.
JJF states, "The State could not and did not argue that it had
met the standard of proof of the substantial likelihood of recidivism if JJF
were discharged subject to appropriate conditions.” Counsel says if Judge Freedman considered conditional
discharge, he should have ordered conditional discharge because "the State utterly failed to
prove by clear and convincing evidence that JJF would pose a substantial likelihood
to reoffend in the reasonably foreseeable future if he were to be discharged
with a careful and substantial conditional release."
JJF mainly relies on In re Civil Commitment of E.D.,
353 N.J. Super. 450 (App. Div. 2002), to support his claim that Judge Freedman erred by
not considering conditional discharge. JJF misunderstands E.D. At issue there was whether, once
a person no longer meets the SVPA "sexually violent predator" criteria, a judge
can order conditional discharge. The issue arose because of the language in one
section of the SVPA, N.J.S.A. 30:4-27.32c(1), which states:
If the Department of Human Services recommends conditional discharge of the person and
the court finds that the person will not be likely to engage in
acts of sexual violence because the person is amenable to and highly likely
to comply with a plan to facilitate the person's adjustment and reintegration into
the community so as to render involuntary commitment as a sexually violent predator
unnecessary for that person, the court may order that the person be conditionally
discharged in accordance with such plan.
[N.J.S.A. 30:4-27.32c(1)]
In E.D., we said that where a person no longer satisfies the criteria
for a "sexually violent predator," the court, not only the Department of Human
Services, may order conditional discharge as a matter of its inherent authority. 353
N.J. Super. at 453. We said, "Here, although the SVPA says that when
the committee is no longer found to be a sexually violent predator he
should be released, the statute does not state that the release must be
without conditions." Id. at 456. We ruled that the ability of a judge
to order conditional discharge, once the court determined the person no longer meets
the SVPA criteria as a sexually violent predator, is necessary to effectuate the
SVPA's purposes in ensuring public safety and security. Id.
Contrary to JJF's contentions, the E.D. court certainly did not suggest that a
judge should conditionally discharge a person deemed a sexually violent predator under the
SVPA. Under E.D., if the person is a sexually violent predator, conditional discharge
is not an option. Only if the person is no longer likely a
sexually violent predator may the judge consider conditional discharge under E.D.
Our deeper consideration of E.D. confirms this position. At the conclusion of E.D.
we addressed the committee's argument about the applicability of two unpublished decisions, In
re Commitment of S.R., No. A-923-00 (App. Div. February 6, 2000), and In
re Commitment of R.W., No. A-1230-00 (App. Div. January 30, 2002). We described
these cases as raising the question whether "the court has the authority to
order that a sexually violent predator be placed in a facility less restrictive
than the [STU]." E.D., 353 N.J. Super. at 457.
In those cases, we considered the plain language of N.J.S.A. 30:4-27.32(a), which requires
that sexually violent predators are housed in a "facility designated for [their] custody,
care and treatment" by the Department of Corrections. We ruled that the trial
judge "had no authority to place the offenders in a less restrictive facility."
E.D., 353 N.J. Super. at 458. These rulings show our general disapproval of
a trial judge putting a committed sexually violent predator in a correctional facility,
or any less restrictive environment, other than the STU.
Judge Freedman acted in a manner entirely consistent with E.D. when he did
not consider conditional discharge as an option for JJF on this record. Because
Judge Freedman was under no obligation to consider conditional discharge for an individual
he deemed a sexually violent predator, JJF's next argument, that the judge erred
when he did not order conditional discharge, lacks merit.
At the review hearing, Judge Freedman proceeded with the sexually violent predator analysis
and found the criteria were met.
See footnote 1 He found JJF continued to have a
mental abnormality or personality disorder such that he was highly likely to engage
in acts of sexual violence if not confined in a secure facility for
control, care and treatment. Judge Freedman's application of the "highly likely" standard was
consistent with the Supreme Court's explanation in
W.Z. that
One's likelihood to commit such acts obviously relates to the control determination that
the trial court must make. Although the "likelihood" requirement is not defined further
in the Act, we import into that analysis the "serious difficulty" standard. An
individual may be considered to pose a threat to the health and safety
of others if he or she were found, by clear and convincing evidence,
to have serious difficulty in controlling his or her harmful behavior such that
it is highly likely that the individual will not control his or her
sexually violent behavior and will reoffend.
[W.Z., 173 N.J. at 130.]
After W.Z., Judge Freedman had to determine whether there is a substantial likelihood
JJF would reoffend if released, not whether there is a substantial likelihood JJF
would reoffend if placed on conditional release. E.D. does not say otherwise. There,
the judge first determined E.D. was not a sexually violent predator, and then
approached the issue of conditional release. Our case law does not support JJF's
contention that the two analyses are collapsed into one.
In sum, JJF's criticism of what Judge Freedman considered to reach his conclusions
does not suggest an abuse of discretion. JJF overlooks Judge Freedman's lengthy discussion
of JJF's treatment notes in the months after the final hearing. These notes
perhaps best indicated JJF's progress at STU. Ultimately, JJF's position that Judge Freedman
lacked clear and convincing evidence for his decision is unpersuasive, especially on behalf
of a committee who, unlike the committees in E.D. or W.Z., did not
present his own expert. We find no fault with Judge Freedman's conclusion.
However, this does not end the matter. While we affirm JJF's commitment under
the SVPA, we conclude that the right must be available to the committed
person to demonstrate at any future hearing that he can be released on
a conditional discharge with a reasonable likelihood of safety. In E.D., we ruled
that the court possesses the inherent power to impose conditions on the release
of a committee who is determined no longer a sexually violent predator and
who may be released from confinement with a reasonable degree of safety. Here
the claim is somewhat different but akin to that in E.D. The appellant's
argument is that although JJF meets the criteria for continued commitment if he
does not receive and comply with treatment, a properly developed record might possibly
support a finding that with appropriate conditions for treatment and with supervision, he
does not meet the criteria for commitment. That is, with treatment and a
sound conditional release plan, he might not be highly likely to reoffend under
the third prong.
We conclude that such conditional release should always be a consideration, if properly
documented and supported. This is an extension of E.D. but a logical and
necessary one in view of the potential alternative of permanent confinement. The consequences
"may be so severe than a [committee] may be confined for the remainder
of his or her life." State v. Bellamy, __ N.J. __, __ (2003)
(slip op. at 14-15.) According to JJF, E.D. requires the judge to consider
a conditional release in examining the third element of a sexually violent predator,
the degree of danger to the health and safety of the community. We
disagree with JJF that E.D. directly stands for this proposition, but we agree
with his contention that we should take the next inferential step which E.D.
suggests: the trial judge should consider conditions imposed on JJF that would substantially
reduce the likelihood of future acts of sexual violence. When the evidence suggests
a potential for defeating this third prong under appropriate conditional release terms, we
conclude the judge has the authority and the responsibility to consider the conditions,
and factor that evidence into a determination of whether the third prong is
met.
In E.D., we stated:
To allow a person who has been committed as a sexually violent predator
to be released without conditions may, in certain circumstances, place the safety and
security of the public at risk. This risk of harm to society may
be reduced by the person’s mandatory compliance with conditions upon release. For example,
if a committee is found no longer "likely to engage in acts of
sexual violence" as long as he continues to take medication, it would be
folly to release him into the general populace without conditioning his release upon
compliance with a required course of medication.
Again, and similarly, under N.J.S.A. 30:4-27.32c(1):
If the Department of Human Services recommends conditional discharge of the person and
the court finds that the person will not be likely to engage in
acts of sexual violence because the person is amenable to and highly likely
to comply with a plan to facilitate the person’s adjustment and reintegration into
the community so as to render involuntary commitment as a sexually violent predator
unnecessary for that person, the court may order that the person be conditionally
discharged in accordance with such plan.
Both E.D. and N.J.S.A. 30:4-27.32c(1) recognize that conditions placed on the released individual
can reduce the likelihood that the person will engage in acts of sexual
violence, the precise determination that a judge must make under the third element,
potential sexual violence. If such conditions substantially reduce the likelihood to a degree
that prevents the State from proving by clear and convincing evidence that the
individual is highly likely to engage in acts of sexual violence, then the
individual is entitled to a conditional discharge.
Commitment laws were enacted to strike a balance between the interest of safety
for the individual and the community, and the fundamental liberty interests of the
person the State seeks to commit. See N.J.S.A. 30:4-27.1b. The court must not
confine an individual indefinitely when the individual with reasonable assurance could live safely
in the community with support and supervision. See
State v. Carter,
64 N.J. 382, 389 (1974). Such an approach would deny fundamental fairness to that individual.
See State v. Bellamy, __ N.J. __ (2003) (fundamental fairness requires trial judge
to inform criminal defendant that civil commitment is a potential consequence to guilty
plea, even though such commitment is not a direct or penal consequence). To
attain the balance that the SVPA seeks, the court must consider the entire
circumstances of the individual, including conditions imposed on the individual that affect the
safety of the community. But, if after a fair chance to produce evidence,
a conditional discharge from SVPA confinement cannot be granted without undue risks to
society, the judge should continue the commitment until the prospects for release are
more optimistic.
In this matter now on appeal JJF presented no expert testimony or other
evidence of a discharge plan to the judge. Nor did he present any
such offer of proof preserved under
R. 1:7-3. See State v. Millet,
272 N.J. Super. 68, 100 (App. Div. 1994). We conclude that the trial judge
does not have to reconsider these consolidated commitment matters, but must act consistently
with this decision in all future review hearings.
As to appellant's due process claims raised in Point II and in his pro se supplemental brief, they will be addressed at the hearing on remand and do not require our comment in a written opinion at this point. R. 2:11-3(e)(1)(E). We conclude they do not justify reversal.
Affirmed in part; remanded in part with instructions for future hearings.
Footnote: 1
Concerning the propriety of JJF's commitment, we note that, as between the
final hearing and the review hearing, JJF's current commitment is based on the
review hearing. The final hearing only dealt with JJF's commitment for six months
succeeding June 11, 2002. Since that period has long expired, the final hearing
is only relevant insofar as Judge Freedman relied on that hearing at the
review hearing. Otherwise, it has no bearing on the present appeal. Again, this
would imply Appeal-1 and Appeal-3 are moot, since they arose from the final
hearing.