Before Judges King, Carchman and Lefelt.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Mercer and Passaic Counties.
This appeal requires us to consider the narrow but significant issue of whether an individual, who is either presently incarcerated or resident in a state psychiatric facility and on Conditional Extension Pending Placement (CEPP) *fn1 status, and who is subject to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -.38 (the Act), is entitled to notice prior to temporary commitment to the Sexually Violent Predator facility at Kearny (Kearny). We hold that such notice is constitutionally required. We further conclude that the Office of the Public Defender is not entitled to a general listing of persons that are to be transferred to Kearny.
Defendants on this appeal, M.G., D.C. and H.H., *fn2 are all convicted sexual offenders subject to the Act. Following completion of their terms of incarceration, which included commitment to the Adult Diagnostic and Treatment Center (ADTC), they were involuntarily committed to a state psychiatric facility for further treatment. They have been represented by counsel since they were first committed. See R. 4:74-7(c)(3).
Upon completion of his maximum term of incarceration, M.G. was committed on June 3, 1999, to the Ann Klein Forensic Center (Forensic); thereafter, he was transferred to the Greystone Park Psychiatric Hospital (Greystone). On October 26, 1999, he was placed on CEPP status pending an appropriate placement outside of Greystone. Included within the alternative placements was a commitment to Kearny.
On the date that MG was ordered to CEPP status, the judge entered an order requiring the State to provide two weeks notice to M.G.'s attorney prior to any commitment to Kearny. The judge also ordered the State to provide the Public Defender's office with a general listing of persons to be transferred to Kearny. In ordering the notice and denying the State's application for reconsideration, the judge concluded that notice was required to satisfy "fundamental fairness, due process, [and] the patient's right to counsel . . . ."
D.C.'s commitment process followed a similar pattern. He, too, was placed on CEPP status and, consistent with his prior ruling, the judge ordered fourteen days notice to counsel prior to consideration of placement to Kearny.
Although H.H. is similarly situated, an order was entered on January 27, 2000, pursuant to the Act, transferring him to Kearny for evaluation pending final hearing. That transfer renders the notice issue moot; therefore, we address only the propriety of the notice in the context of M.G. and D.C.
Our analysis commences with a discussion of both the Act and the implications of commitment under the Act. The Act is part of the legislative response to sexual offenses and offenders. See, e.g., N.J.S.A. 2C:7-1 to -11 ("Megan's Law"). *fn3 Prior to enactment of the Act, the State could only commit sexual predators under the general involuntary civil commitment statute. See N.J.S.A. 30:27.10. According to legislative findings, however, many sexually violent predators (SVPs) do not suffer from "a current, substantial disturbance of thought, mood, perception or orientation . . . ." N.J.S.A. 30:4-27.25. Many SVPs suffer from mental conditions that do not necessarily lend themselves "to characterization under the existing statutory standard" for involuntary civil commitment. Ibid. Nonetheless, the Legislature found that civil commitment may "be warranted due to the danger the person may pose to others as a result of the mental condition." Ibid. Thus, the general commitment statute was modified to allow potentially long-term commitment of SVPs in a separate and secure facility. The notice requirements were not changed, despite the fact that most candidates for commitment under the Act are confined when the State's petition for commitment is filed. M.G. and D.C. were both under State control at the time of the commitment in issue here.
In an effort to secure appropriate post-sentence treatment for those convicted of offenses involving sexual violence, the Legislature identified a class of offenders as "sexually violent predators." A "sexually violent predator" is defined 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.]
The Legislature amended the commitment statute, enabling the transfer of those determined to be SVPs to a more appropriate facility for specialized treatment designed specifically for sex offenders' behavior. N.J.S.A. 30:4-27.24.
The Act requires that individuals committed pursuant to its terms receive treatment "appropriately tailored to address the specific needs of sexually violent predators." N.J.S.A. 30:4-27.34(b). The Kearny facility was established to provide such treatment. While the Act designates the Department of Corrections as the agency responsible for the operation of the facility, the patients are to be housed separately from prisoners. N.J.S.A. 30:4-27.34(a). Unlike a prison setting, the Act designates the Division of Mental Health Services as the agency responsible for providing appropriate treatment for residents at the Kearny facility. N.J.S.A. 30:4-27.34(b).
These residents are patients at a secure treatment facility, not inmates as suggested by the Public Defender. The treatment program is designed to provide comprehensive treatment services and is staffed by psychologists, psychiatrists, social workers, substance abuse counselors and other staff members with specialized training in the assessment and treatment of sexual deviance and personality disorders.
According to the State, the Kearny facility is designed to provide a non-judgmental, non-punitive therapeutic treatment program in a setting that is controlled, safe, and conducive to the treatment process. There are, however, some marked differences between the facility and other therapeutic placement facilities. Persons committed to Kearny are housed in locked rooms and monitored by uniformed correctional officers, some carrying weapons, who are employed by the Department of Corrections. Residents leaving the facility are shackled with handcuffs to waist chains and also with ankle cuffs. There are no opportunities at Kearny to advance to a less restrictive physical structure. For a full discussion of the background of the Act and a description of the therapeutic ...