On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-132-00.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 18, 2002
This is an appeal from a commitment order entered pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA) on October 24, 2000 after an initial commitment hearing. N.J.S.A. 30:4-27.29. Further review hearings, see N.J.S.A. 30:4- 27.35, have been stayed pending the outcome of this appeal. Appellant K.D. raises these issues on this appeal:
POINT I - THE COMMITMENT COURT HAS JURISDICTION TO HEAR TESTIMONY AND ENTER ORDERS PROTECTING THE RIGHT TO TREATMENT OF PERSONS COMMITTED PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT.
POINT II - K.D. HAS A RIGHT TO TREATMENT IN THE SPECIAL TREATMENT UNIT PURSUANT TO BOTH STATE AND FEDERAL CONSTITUTIONAL LAW.
A. New Jersey Statutes Create A Right To Treatment According To The Highest Standards And Which Will Provide K.D. With The Best Opportunity for Recovery.
B. K.D. Has A Fundamental Right To Treatment Arising Out Of The Fourteenth Amendment To The United States Constitution.
C. An Involuntarily Committed Patient's Right To Receive The Highest Standard of Treatment Is Not Outweighed By The Administrative Cost Or Inconvenience To The State of Providing Such Treatment.
POINT III - THE COURT ERRED IN PERMITTING THE STATE'S EXPERT TO TESTIFY TO OPINION CONTAINED IN REPORTS SUPPLIED AFTER THE COMMENCEMENT OF TESTIMONY.
On this appeal, appellant does not challenge his commitment pursuant to the SVPA under the controlling "highly likely to reoffend" standard set forth in In re Commitment of W.Z., 173 N.J. 109, 132 (2002), decided by our Supreme Court last July. Rather, appellant pursues what we choose to characterize as a "personalized right to treatment claim." Counsel for appellant advances a claim for treatment based on his client's developmental disability which he alleges results from an organic brain disorder. Appellant's counsel explicitly claims that the present sex offender treatment rendered to K.D. and customarily available to the general population at Kearney (STU) is inadequate in view of his special disability.
In his brief, appellant argues that "the lower court should be directed to hold a hearing on the appropriate diagnostic and therapeutic treatment for K.D. and to mold an order providing K.D. with the best opportunity to receive same." He specifically asks for "an in-patient locked unit which is designated for and dedicated to the treatment of sexual offenders who are developmentally disabled."
The State contends that appellant is receiving the best available treatment in his circumstance. The State also claims that his alleged developmental disability should not change the nature of his treatment program. The State urged in its brief and at oral argument, that although its expert, Dr. Ballen, "did not believe that appellant suffered from any significant neurological defects, he ...