On appeal from a Decision of the Department of Human Services and Corrections, Special Treatment Unit.
The opinion of the court was delivered by: Newman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Newman, Axelrad and Holston, Jr.
M.X.L. appeals from his placement in the Modified Activities Program (MAP). He contends through an amicus brief filed by the Division of Mental Health Advocacy that he was placed on MAP status without a hearing and an opportunity to present evidence in violation of both his federal and State constitutional rights to procedural and substantive due process. He also asserts he was denied a hearing and an opportunity to present evidence contrary to N.J.S.A. 52:14B-9. M.X.L. maintains that he should have been given a copy of the confidential appendix which describes the MAP Policies and Procedures and listed residents in MAP. M.X.L. was released from MAP placement on December 8, 2004 and his privileges were reinstated. Because these issues are capable of recurring and of public importance, but may escape review, we have elected to address them. New Jersey Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 118-19 (1990); Matter of the Commitment of Calu, 301 N.J. Super. 20, 24 (App. Div. 1997). We are satisfied that M.X.L.'s due process rights secured by both the federal and State constitutions were not violated upon his placement into Program MAP nor was N.J.S.A. 52:14B-9, the contested case provision of the Administrative Procedure Act, (APA) applicable. However, we agree with M.X.L. that he is entitled to a redacted version of the Map Policies and Procedures without the list of other residents in MAP.*fn1
M.X.L. was found to be a sexually violent predator who was civilly committed pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 -- 27.38. The predicate offense for his commitment occurred on June 29, 1990 when K.O., age twenty-two, told the police of her victimization by M.X.L. and his co-defendant. She claimed that she was forcibly taken from a pay phone after being grabbed from behind and possibly struck with a bottle. She found herself inside what she thought to be Thatcher Glass Company, later determined to be the Lock Joint Corporation. M.X.L. was straddling her and kneeling on her upper arms. He punched her face and head with his right hand while holding a knife in his left hand. Meanwhile, his cohort removed her sneakers, jeans, panties and her jacket and pushed up her shirt and bra. Both men then took turns penetrating her mouth, vagina and anus with their penises and also fondled her breasts with their hands and mouth. They stole a gold crucifix ring, a sapphire and diamond ring and a medium length gold chain from her. After they had finished sexually assaulting her they offered to help her find items of her clothing, which she refused. K.O. made it to the road where a truck driver stopped and transported her to the Wharton Police Department. She told the police what had happened to her.
On July 4, 1990, S.F. was interviewed at the Wharton Police Department by investigators from the prosecutor's office. S.F. reported that on July 3, 1990 she was pulled out of her car and thrown to the ground. She told M.X.L. and his co-defendant that she had her period. They removed her tampon. M.X.L. then got on top of her and vaginally penetrated her while at the same time punching her. His co-defendant then did the same. After they were through, both subjects fled the area on foot having stolen assorted pieces of jewelry from her. She flagged down a passing motorist who notified the police.
On July 13, 1990 M.X.L. was arrested and charged with two counts of criminal restraint, two counts of aggravated assault, two counts of unlawful possession of a weapon, two counts of possession of a weapon for unlawful purposes, two counts of theft from a person, two counts of terroristic threats and four counts of aggravated sexual assault. He pled guilty to two counts of aggravated sexual assault and was sentenced on November 2, 1991 to a prison term of fifteen years.
M.X.L. has committed other criminal offenses which included burglary, theft, possession of a controlled dangerous substance, possession of a weapon, aggravated assault on a police officer, and assault with intent to cause injury. He was diagnosed when he was first civilly committed as a sexually violent predator with the following mental abnormalities and/or personality disorders: paraphilia not otherwise specified (NOS) and antisocial personality disorder.
On September 12, 2000 the trial court at M.X.L.'s initial commitment hearing, found him to be a sexually violent predator in need of commitment, care and treatment. Review hearings were conducted on March 26, 2001, September 24, 2001, March 18, 2002, March 4, 2003, November 3, 2003 and July 16 and 19, 2004, all of which resulted in his continued commitment.
On August 6 and again on September 8, 2004 routine searches of his room at the Special Treatment Unit (STU) uncovered contraband items. Eleven pornographic pictures with one depicting penetration were uncovered hidden inside a tape deck and he had a red container filled with a clear substance emitting a strong odor that was thought to be "hooch." Hooch is slang for alcohol made from moldy bread and fruit juice. Moldy bread was also found. In addition, a number of prohibited items were confiscated which included an LCD television, twenty-eight video games, fifty-three audio tapes, thirty-two music CDs, two speakers, one pair of altered tweezers, four towels, and clothing items that exceeded authorized limits. The seizures were made because the items were either not authorized for retention, exceeded stated facility limits, were altered from original form, not issued through regular channels, exceeded reasonable safety, security or space considerations and were deemed harmful and/or posed a threat to the security or orderly operation of the facility.
M.X.L. admitted the possession of pornography but reasoned that it was only to aid him in masturbation. He denied that the liquid found was alcohol. He explained that he had brought the juice from the kitchen and it had gone bad. The treatment team noted that the alcohol denial was belied by the fact that M.X.L. was fired from his kitchen job on June 20, 2004 and by the discovery of moldy bread which is an ingredient used to make hooch. On August 9, 2004, M.X.L. was placed on ...