On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-159-01.
Before Judges King, Wecker and Winkelstein.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue in this case is the power of the county prosecutor to plea bargain away the Attorney General's right to seek civil commitment under the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We conclude that the county prosecutor has no such power. A plea agreement by a county prosecutor which operates as an impediment to a valid civil commitment of a sexual predator is void as against public policy.
Appellant's history of sexually offensive behavior with young males goes back over twenty years. As a juvenile at age 17 he was arrested in Philadelphia in June 1981 and charged "with criminal solicitation to commit involuntary deviate intercourse." 18 Pa.C.S.A. § 3123. Pursuant to a plea agreement, he received a term of probation. He was next arrested at age 23 in August 1987, also in the Commonwealth of Pennsylvania. He attempted to assault a boy, age 15. The official records state that he attempted to coerce fellatio in a movie theater. He pled guilty to a count of corruption of a minor, 18 Pa.C.S.A. § 6301, and received three years intensive probation.
In September 1987 appellant was again arrested in Philadelphia for a sexually violent offense involving minors. In that matter he attempted to sexually assault two boys, ages 13 and 11. He was charged with two counts of corrupting a minor and two counts of soliciting involuntary deviate sexual intercourse, 18 Pa. C.S.A. § 6301 and § 3123, respectively. He pled guilty to all counts. In November 1987 he received an 11½ to 23-month prison term and three years probation thereafter.
In February 1989, at age 25, appellant was again arrested in Pennsylvania for the sexual assault of a boy, age 15. In that case the victim said appellant grabbed him by the neck and told him he was taking him to the railroad tracks to force him to submit to oral sex. Appellant was apprehended quickly and charged with attempted involuntary deviate sexual intercourse, corruption of a minor, and assault. Upon conviction in November 1989, he was sentenced to a ten-year prison term with a four-year mandatory minimum. In February 1999 he was released from prison at the expiration of his maximum term. He then relocated to Cumberland County, New Jersey.
On March 12, 1999 appellant, at age 35, was arrested in Cumberland County and charged with two counts of "endangering the welfare of a child." N.J.S.A. 2C:24-4b(4)(a) and (b). Personnel of the Vineland Public Library reported to police that he was using the library's public access internet computers to view child pornography, despite earlier warnings. The police observed appellant at a library terminal accessing many pornographic web sites. These sites included "BOYLINKS," "North American Man Boy Love Association" (NAMBLA), which showed young male nude subjects, and sites labeled "masturbation." He was observed downloading graphic images to a floppy disc which he kept. On March 3, 1999 the police searched his residence with a warrant and found two discs with photographic images of nude, underage boys. On November 16, 1999 defendant pled guilty to one count of endangering the welfare of children, N.J.S.A. 2C:24-4(b)(4)(b), a fourth-degree offense.
On February 18, 2000 appellant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), where he readily admitted, "I do actually like guys who are underage." He also made several statements that demonstrated his deviant sexual arousal, including "[s]exual activity with children can help the child learn about sex," "[s]ociety makes a much bigger deal out of sexual activity with children than it really is," and "I think the main thing wrong with sexual activity with children is that it is against the law." The ADTC evaluator said appellant "display[ed] no discernible empathy for children who are victimized by sexual assaults. He also display[ed] no discernible remorse for his deviant sexual behaviors." The evaluator concluded that P.C.'s history, and the information elicited during the evaluation, indicated his most recent offense represented a repetitive and compulsive pattern of behavior. He was deemed eligible for sentencing to ADTC under the sex offender laws. See N.J.S.A. 2C:47-3. However, he advised the ADTC evaluator that he was unwilling to participate in sex offender treatment at ADTC. As a consequence, on April 14, 2000 he was sentenced to an eighteen-month prison term in general population.
Appellant was scheduled for release from prison on March 1, 2001 upon expiration of his maximum sentence. On February 27, 2001 the Attorney General filed a petition in the Superior Court, Burlington County, seeking his civil commitment pursuant to the SVPA. The State's petition for commitment was supported by the certificates of two psychiatrists. Both said that involuntary civil commitment was necessary because appellant suffered from a mental abnormality or personality disorder which made him likely to engage in acts of sexual violence if not confined in a secure facility.
On February 27, 2001 Judge Schlosser found probable cause to believe that appellant was a sexually violent predator. He issued a temporary commitment order authorizing appellant's transfer to the Special Treatment Unit (STU or NRU) at Kearny, Hudson County. On March 19, 2001 appellant filed a motion before Judge Freedman, specially assigned to hear SVPA matters, to dismiss the State's petition and the temporary commitment order because the 1999 plea agreement leading to the child endangering conviction prohibited application of the SVPA to appellant. The judge denied the motion to dismiss. We granted appellant's motion for leave to appeal Judge Freedman's denial of that motion because of the important issue presented. R. 2:2-3(b); R. 2:2-4.
Appellant has been a Pennsylvania resident most of his life. All of his criminal offenses, except the most recent 1999 crime in Cumberland County, were committed in the Commonwealth. The predicate offense under the SVPA was committed in Pennsylvania in 1989 against a victim, age 15.
In seeking civil commitment, the Attorney General is required to prove, by clear and convincing evidence, that the individual is a sexually violent predator in need of civil commitment. N.J.S.A. ...