On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-214-01.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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 ...