On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-345-03.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Lefelt and R. B. Coleman.
Judge Serena Perretti found A.H.B., a twice convicted sex offender, to be a predator under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (the SVPA), and ordered that he be civilly committed to the Special Treatment Unit (STU).
A.H.B. appeals, arguing: (a) he was constitutionally entitled to a jury trial; (b) the standard of proof for commitment must be beyond a reasonable doubt; (c) the State failed to present a psychiatrist from his treatment team who had examined him within five days of his final commitment hearing, as required by the SVPA; (d) the State failed to establish by clear and convincing evidence that, at the time of his final hearing, he required commitment; and (e) Judge Perretti erroneously relied upon hearsay testimony in ordering the commitment. We conclude that A.H.B.'s arguments (a), (b), and (e) are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). See In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004) (permitting hearsay material as a basis for an expert's opinion); In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 46 (App. Div. 2004) (holding that clear and convincing standard applies); In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005) (recognizing admissibility of hearsay typically relied on by experts and noting that a trial judge may use hearsay as background in evaluating expert testimony); and In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 606-07 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004) (finding no right to jury trial in civil commitment cases). Though we also reject A.H.B.'s arguments (c) and (d), regarding the timeliness and quality of the State's proofs, some explanation is required.
The facts relevant to the issues we discuss are as follows. After sexually abusing his step-daughter, when she was between the ages of eight and twelve, A.H.B. pled guilty to third-degree criminal sexual contact, N.J.S.A. 2C:14-3b. Pursuant to a plea agreement, he was sentenced to two years probation, some weekend jail time, registration and submission of a DNA sample pursuant to Megan's Law, sex specific counseling, and payment of fines.
While on probation for the sexual contact conviction, A.H.B. delayed contacting the treatment center to initiate treatment and did not attend his initial appointment. A.H.B. also missed some group therapy sessions, claiming he did not have transportation.
While A.H.B. was in treatment and still on probation, he re-offended with another young girl, this time a fifteen-year-old. A.H.B. admitted touching her breasts and vagina, digitally penetrating her, and performing oral sex on her.
Eventually, upon A.H.B.'s guilty plea to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, Judge Almeida imposed a sentence of four years imprisonment at the Adult Diagnostic and Treatment Center (Avenel), to run concurrent with an eighteen-month sentence for violating parole. The judge further ordered A.H.B. to submit a DNA sample; to register as a sex offender, subject to community supervision for life; and not to have contact with the victim or any female child or juvenile. A.H.B. was scheduled to complete his sentence on November 15, 2003.
On June 9, 2003, Heather Burnett, L.S.W., and Hilton Miller, Psy.D., prepared a termination report detailing A.H.B.'s treatment at Avenel. The report noted A.H.B.'s understanding of sex offender treatment was "superficial." According to the report, A.H.B. had "very limited understanding of his deviant arousal, [did] not understand the link between the deviant fantasy and the offensive cycle, [had] limited insight into the role of planning and grooming, and limited insight into internal and external high risk situations." According to the MnSOST-R test score of five, A.H.B. was a "moderate" risk to re-offend, and his Static-99 score of six suggested he was a "high" risk to re-offend.*fn1
On August 5, 2003, about three months before A.H.B. was to be released from Avenel, Dr. Roger Harris, a psychiatrist, completed a termination report, concluding that A.H.B. "meets the criteria for involuntary civil commitment." The doctor noted that A.H.B. "has significant cognitive impairment, does not deal well with stress and overall demonstrates very poor judgment." Dr. Harris concluded that A.H.B. had only made "limited treatment gains" and, as he had ...