On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-54-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
J.X.H., a fifty-five year old man with a history of sexually violent crimes, appeals from two judgments. The first was entered on October 28, 2005, by Judge Philip M. Freedman following a hearing on October 27, 2005 and the second was entered on October 16, 2006, by Judge Serena Perretti following a hearing on October 11, 2006. Both judgments conclude and provide that J.X.H. is a sexually violent predator who continues to be in need of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The October 28, 2005 judgment provided for a review hearing on October 11, 2006. The Notice of Appeal from the October 2005 judgment was not filed until September 5, 2006. On September 20, 2006, J.X.H.'s motion to file the appeal as within time was granted. Thereafter the scheduled review hearing was conducted resulting in the October 16, 2006 judgment. That judgment ordered that J.X.H. be committed to the Special Treatment Unit (STU) for care, custody and treatment of sexually violent predators and scheduled the next review hearing for September 28, 2007. By an order of consolidation, entered on December 1, 2006, the two appeals were consolidated for all purposes.*fn1 We affirm both judgments.
J.X.H.'s predicate offenses were first degree aggravated sexual assault and second degree sexual assault to which he pled guilty in 1990 and received a seven year prison term. The offenses were committed over a three year period with an eleven year old boy and a nine year old boy. During treatment, J.X.H. disclosed that he committed additional acts of sexually offensive behavior beginning at the age of thirteen up until he was arrested for the predicate offenses at the age of thirty-six years old.
In 2000, J.X.H. was transferred to the STU in Kearny from Greystone Park Psychiatric Hospital. Periodic review hearings since that time have resulted in his continued commitment to STU. On December 1, 2004, a hearing stipulation of continued commitment was entered into, but was mistakenly appealed. That appeal was withdrawn. Thereafter, J.X.H. appealed from the October 27, 2005 judgment continuing his commitment for one year, and that matter remained unresolved when he appealed from the judgment entered at the conclusion of the hearing in October 2006.
In the separate civil case information statements filed on these consolidated appeals, J.X.H. outlines the following arguments:
1. The Attorney General failed to prove by clear and convincing evidence that J.X.H. was "highly likely" to re-offend if not confined at the Special Treatment Unit.
2. The Attorney General failed to establish by clear and convincing evidence that J.X.H. suffers from a mental or emotional condition which may cause him to re-offend sexually.
3. The Attorney General failed to prove by clear and convincing evidence all of the elements necessary to commit J.X.H. pursuant to the Sexually Violent Predator statute.
4. The Rules of Evidence, including N.J.R.E. 703, 803(c)(6), 803(c)(8) and 808, were repeatedly and egregiously violated by the court by its admission into evidence of a volume of hearsay documents which were either completely or partially inadmissible or the contents of which were considered for purposes not permitted by the rules of evidence.
At oral argument before this panel, counsel emphasized more particularly that J.X.H. has been at STU for about seven years, that he has not been involved in any sex offenses during that time, and that he has not been given credit for all the progress he has made. Counsel pointed out there has been a seventeen year span of time since J.X.H. engaged in any act with a ...