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Greenfield v. New Jersey Dep't of Corrections

January 11, 2006


On appeal from a Final Decision of the New Jersey Department of Corrections.

The opinion of the court was delivered by: Seltzer, J.A.D.




Submitted December 13, 2005

Before Judges Kestin, R. B. Coleman and Seltzer.

Plaintiff, Gilbert Greenfield, was convicted in 1987, of aggravated sexual assault, kidnapping, aggravated assault, possession of a weapon for an unlawful purpose, robbery, and parole violations. He was sentenced to a total term of thirty-three years, with a fifteen-year parole disqualification, to be served at the Adult Diagnostic and Treatment Center in Avenel. As the expiration of his maximum term approached, Greenfield recognized that he might be referred to the Attorney General as a candidate for possible civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38.

Greenfield applied to the Department of Corrections (1) to review the report required to be prepared at the termination of his sentence for use by the Department when deciding whether to refer him to the Attorney General for the possible commencement of civil commitment proceedings and (2) to meet with the committee that determines if referral is appropriate and present argument and evidence to that committee explaining why he should not be referred. He appeals from the Department of Correction's denial of those requests. Because we find no right to the relief sought, we affirm.

Before considering the merits of defendant's appeal, we dispose of two preliminary matters. Initially, defendant suggests this appeal be dismissed as moot because plaintiff's situation has, in fact, been referred to the Attorney General who, in turn, has sought, and obtained, an order of temporary commitment. We do not believe that the referral renders this appeal moot. "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." New York S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985). In that sense, the appeal is not moot at all. We believe that plaintiff here retains a specific interest in this litigation since a favorable decision on this appeal might require relief involving the referral and ensuing commitment until he has been allowed to address the referring agency.

Our decision to review the issue would remain unchanged, however, even were the appeal to be considered moot. Plaintiff claimed the right to review the material on which his possible referral will be based and the right to address the referring committee before any referral decision is made. The question of the right of similarly situated persons to do so is likely to recur and it is certainly of significant public importance. Nevertheless, the issue is likely to evade review because, in almost all cases, the referral decision will be made before appellate review is possible. Under those circumstances, our review is appropriate even if it may not impact the individual involved in the appeal. Township of Montclair v. County of Essex, 288 N.J. Super. 568, 571, n.1 (App. Div. 1996) citing Cain v. New Jersey State Parole Board, 78 N.J. 253, 255 (1978).

The Defendant also asserts that the appeal is governed by existing regulations. It claims that "both State law and department policy prohibit an inmate from appearing before the . . . [referring committee] . . . and receiving copies of termination reports and other confidential professional reports." That may be true, but it begs the question of whether those policies and administrative code provisions violate the constitutional protections upon which plaintiff relies. If there is a violation, of course, the authority on which defendant relies may not pose a barrier to plaintiff's requested relief.

We turn then to the merits of the appeal. We begin our analysis with a brief review of the structure of the Sexually Violent Predator Act. That Act provides for the involuntary civil commitment of a person determined to be a sexually violent predator. The Act defines a 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 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(b).]

An agency releasing a person who is serving a sentence or term of confinement is required to provide notice to the Attorney General at least 90 days before release if it determines that the person to be released may meet the criteria of a sexually violent predator. N.J.S.A. 30:4-27.27(a)(1). The Attorney General may then seek a civil commitment. N.J.S.A. 30:4-27.28. Pursuant to N.J.S.A. 30:4-82.4, defendant has adopted policies to identify those individuals who may meet the criteria for referral to the Attorney General and to provide information concerning those individuals upon which the Attorney General may make appropriate decisions. Those policies require the identification of prisoners who will be released within a given period and provide for appropriate testing and record reviews to be conducted so that timely notice may be given. The results of the tests and evaluations are then reviewed and a final decision made as to whether the individual may meet the criteria for civil commitment. It is those documents that plaintiff seeks to review.

The body charged with determining if an inmate at Avenel may meet the criteria describing a sexually violent predator is designated the Institutional Release Committee or the Inmate Release Committee ("IRC"). The parties agree that the IRC consists of the heads of various departments and staff at Avenel and is chaired by the ...

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