January 14, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF E.D. SVP-75-00.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-75-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2007
Before Judges Cuff, Lisa and Simonelli.
Appellant, E.D., appeals from a judgment entered on September 30, 2005*fn1 ordering his continued confinement at the Special Treatment Unit (STU) as a sexually violent predator under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The judgment was entered following a hearing conducted on September 21, 22, 23 and 28, 2005, after which Judge Perretti set forth her findings and decision on the record on September 30, 2005. The hearing followed a remand to the trial court by the Supreme Court. In re Commitment of E.D., 183 N.J. 536, 552 (2005).
E.D. was initially committed to the STU in 2000. In the latter part of 2002, the trial court ordered him conditionally discharged from the STU, and he was released and transported to the American Rescue Workers Mission Shelter in Newark on December 4, 2002. Id. at 542. E.D. was subsequently charged with violating various terms of his conditional discharge, most notably leaving the Shelter without permission, as a result of which the trial court entered an order on February 10, 2003 directing E.D.'s return to the STU, which was accomplished on that date, and scheduling a hearing to determine whether his conditional discharge should be revoked. Id. at 543. The hearing was conducted with the following results:
The court reviewed the evidence and found it was a mistake to have conditionally discharged E.D. Further, the court found that the evidence clearly demonstrated an unsuccessful adjustment and that E.D. left the Shelter without permission. The court concluded that the State established that E.D. continued to be a sexually violent predator and that he was highly likely to reoffend if not committed. The court ordered his recommitment and set a one-year review date.
[Id. at 545.]
We affirmed the trial court's determination in an unpublished opinion, ibid., and the Supreme Court granted E.D.'s petition for certification. Id. at 546.
In its review of the matter, the Supreme Court analyzed the due process requirements applicable to recommitment proceedings under the SVPA and the standard of proof required to support an order of recommitment. The Court held that due process requires that written notice of each alleged violation be provided sufficiently in advance of the court proceeding to provide the committee with a reasonable opportunity to prepare a defense. Id. at 548. That aspect of the Court's opinion is not implicated in this appeal.
The Court further held that although it must be clearly and convincingly proven that terms of the conditional discharge were violated, that alone is not sufficient to satisfy the State's burden to recommit. Id. at 551. That is so because "[t]he trial court may conclude that despite the proof of the violation, the same terms should be continued or other terms of conditional discharge should be imposed, and again place the committee on conditional discharge." Ibid. The trial court's function is "'to "mold" an appropriate order based upon'" its evaluation of the evidence. Ibid. (quoting State v. Fields, 77 N.J. 282, 302 (1978)). The Court concluded that to justify recommitment, the State must meet the standard established in In re Commitment of W.Z., 173 N.J. 109 (2002), namely it "must establish by clear and convincing evidence that the committee is highly likely not to control his or her sexually violent behavior and will reoffend." Ibid.
The Court noted that at the recommitment proceeding, the trial court found that E.D. continued to be a sexually violent predator and that, "[b]ased on the substantial evidence in the record, the [trial] court concluded that 'it is, indeed, highly likely, that [E.D.] will recidivate.'" Id. at 552. However, the trial court failed to express the standard of proof used in making its findings, and "[t]he failure to set forth that the court's findings were based on clear and convincing evidence require[d] a remand." Ibid.
The matter therefore returned to the trial court. Had the Supreme Court's opinion ended with the passage quoted in the preceding paragraph, the sole purpose of the remand would have been for the trial court to review the record of the recommitment proceeding and articulate whether its findings were by clear and convincing evidence. However, the Supreme Court said more, namely:
We make one final observation. The [SVPA] provides for annual reviews. We were informed at oral argument that because E.D. waived the annual review, he has not had a review since his recommitment in March 2003.
Based on E.D.'s waiver of his right to a subsequent hearing or hearings, we harbor serious reservations whether the issues raised in this appeal are still ripe for decision. Nevertheless, because the issues discussed may reoccur, we have elected to address them. [Ibid.]
Counsel and the trial court addressed the matter promptly after the Supreme Court's June 15, 2005 decision. Updated evaluations were performed and the hearing was conducted in September 2005. However, two-and-one-half years had elapsed since E.D.'s recommitment, and there had been no intervening review proceedings. Accordingly, Judge Perretti treated the proceeding as an annual review hearing, the purpose of which was to determine whether the evidence established that E.D. was currently subject to commitment as a sexually violent predator. After hearing all of the testimony, including that of experts presented by both sides, and reviewing substantial documentary evidence, she found:
At this point the [c]court states categorically that it was and continues to be clearly convinced that the respondent violated his conditions of discharge, which violations were established by clear and convincing proof.
Further, this [c]court was and continues to be clearly convinced that the respondent continued to be at that time and down to this date a sexually violent predator, and all of the criteria of the statute have been established both then and now by clear and convincing proof.
The matter was remanded by the Supreme Court because this [c]court did not express that the clear and convincing standard had been met. The issue on this hearing is not whether the respondent violated the conditions of his discharge. The violation of the conditions of discharge has already been established. The issue now is solely whether the respondent continues to be committable by clear and convincing proof.
The judge further considered and rejected E.D.'s contention that the conditional release plan he presented at the hearing "serve[d] to mitigate his risk to an acceptable level" so as to support another conditional discharge. She found that the evidence presented by E.D. regarding his proposed plan was completely deficient, did not warrant consideration, and therefore did not rebut the State's proof establishing clearly and convincingly that E.D. was highly likely not to control his sexually violent behavior and would reoffend.
Accordingly, the judge entered judgment continuing E.D.'s commitment at the STU and ordering an annual review hearing one year later.*fn2 This appeal followed.
E.D. argues on appeal:
THE COURT ERRED IN FINDING CLEAR AND CONVINCING EVIDENCE FOR ITS VACATION OF THE PREVIOUS CONDITIONAL RELEASE ORDER, CONTRARY TO ITS OWN RECOLLECTION OF EVENTS.
THE TRIAL COURT ERRED IN ALLOCATING THE BURDEN OF PROOF TO RESPONDENT TO PROVE THAT HIS DANGEROUSNESS COULD BE REDUCED ACCEPTABLY BY CONDITIONS.
A. THE COURT'S ALLOCATION OF THE BURDEN OF PERSUASION CONTRAVENED CONSTITUTIONAL MANDATES AND THE SEXUALLY VIOLENT PREDATOR ACT.
B. THE BURDEN OF PROOF FELL UPON THE STATE BECAUSE OF THE SUPREME COURT'S REVERSAL OF THIS COURT'S ORDER.
C. THE COURT ERRED IN REFUSING TO HEAR THE EVIDENCE THAT IT DEMANDED AS PART OF E.D.'S BURDEN OF PROOF TO SHOW THAT HIS DANGEROUSNESS COULD BE REDUCED ACCEPTABLY BY CONDITIONS.
THE COURT'S FINDINGS REGARDING E.D.'S LIKELIHOOD TO REOFFEND WERE UNSUPPORTED BY THE RECORD.
THE COURT ERRED IN RELYING UPON EXPERTS WHO AVOWEDLY ASSUMED THE TRUTH OF UNPROVEN ALLEGATIONS IN HEARSAY DOCUMENTS.
A. THE EXPERTS' OPINIONS WERE UNRELIABLE BECAUSE THEY ASSUMED THE TRUTH OF UNPROVEN ALLEGATIONS.
B. THE EXPERTS' OPINIONS WERE UNRELIABLE BECAUSE THEY ASSUMED THE TRUTH OF ALLEGATIONS REJECTED BY A JURY VERDICT.
At oral argument, E.D.'s attorney requested leave to brief an additional issue, namely, that upon E.D.'s initial commitment in 2000, he was deprived of his federal due process rights because he was temporarily committed by virtue of an ex parte order issued pursuant to the SVPA without first being afforded a hearing.*fn3 The Deputy Attorney General had no objection, and we granted leave. Both parties filed supplemental briefs on this issue after oral argument.
We are unpersuaded by E.D.'s arguments and affirm.
In E.D., supra, 183 N.J. at 540-41, the Court summarized E.D.'s criminal history as follows:
E.D. has an extensive history of committing sex offenses and other crimes. In September 1977, E.D. was charged with rape and assault with intent to rape. He was subsequently found guilty and evaluated at the Adult Diagnostic and Treatment Center (Avenel). At that time, the evaluation concluded that E.D. did not fall under the purview of the Sex Offender Act. In June 1978, the trial court imposed a fifteen-year sentence. In 1988, E.D. was sentenced to an eight-year prison term with a four-and-one-half year period of parole ineligibility for a robbery conviction. He was paroled in February 1994, and two months later, he was arrested and charged with burglary, aggravated sexual assault, sexual assault, aggravated criminal sexual assault, and criminal sexual contact. E.D. was convicted of criminal sexual contact and criminal mischief. In December 1994, the trial court imposed an eighteen-month prison sentence with a nine-month period of parole ineligibility.
In October 1995, three months after his release from prison, E.D., wielding a knife, approached a woman and demanded she remove her clothes. When she refused, E.D. attacked her with the knife and punched her in the face. The victim was able to escape.
E.D. was later arrested and charged with attempted aggravated sexual assault, aggravated assault, criminal sexual contact, and possession of a weapon for an unlawful purpose. He entered into a plea agreement with the State and pled guilty to aggravated assault in exchange for a probationary sentence. The trial court accepted the plea, imposed a probationary sentence, and dismissed the remaining charges. After E.D. violated probation in 1997, he received a five-year prison sentence.
We now summarize the evidence presented at the hearing that is the subject of this appeal.
The State presented the testimony of Dr. Gregory Gambone, a psychologist, and two psychiatric experts, Dr. Michael McAllister and Dr. Luis Zeiguer.
Gambone, a member of the STU Treatment Progress Review Committee (TPRC), described E.D.'s treatment progress at the STU based upon TPRC reports issued in March 2004 and April 2005. In both years, the treatment team recommended phase two status for E.D.*fn4 Gambone explained that phase two is an adjustment phase, in which residents are expected to work through some of the difficulties they might have in engaging fully in treatment. In E.D.'s case, this was necessary because he continued to deny some of the offenses of which he had been convicted.
Gambone acknowledged that E.D. progressed in his substance abuse treatment. However, he did not progress in his sex offender treatment. E.D. continued to deny the 1994 offense, and he continued to deny that he sexually assaulted the victim in the 1977 case. Gambone concluded that E.D.'s failure to "discuss thoroughly what did happen and discuss thoroughly what discrepancies there might be" prevented him from developing "a thorough relapse prevention strategy."
McAllister interviewed E.D. on September 19, 2005. He found significant the history of E.D.'s violent sexual attacks on women, resulting in at least two known convictions. Because of the recidivism after serving a prison sentence for a sexual offense, McAllister inferred that E.D. committed another sexual offense due to deviant sexual urges. McAllister also concluded that E.D. felt entitled to engage in such behavior, was undeterred by conscience, and had very poor impulse control.
Commenting on E.D.'s non-sexual criminal history, McAllister noted it was extremely extensive, was consistent with a lack of respect for the right of others, and demonstrated a readiness, willingness and pleasure at exploiting others and a lack of conscience development.
McAllister acknowledged that E.D. was participating appropriately in substance abuse treatment. However, he expressed concern regarding E.D.'s progress, noting that E.D. had not been truthful when asked about his past drug use. For example, E.D. gave conflicting information at different times regarding his use of heroin. McAllister also noted that in March 2005, after E.D. returned to the STU upon the revocation of his conditional discharge, he refused to participate in a random drug screening, suggesting that he had something to hide.
McAllister described E.D.'s sex offender treatment as "poor." He testified:
[E.D.] denied ever having forcefully --ever having coerced or forced any individual into sex. He specifically denied sexual assault or rape. He denied ever having any ideas or urges along that line. . . . [E.D.]'s progress in sexual offender treatment depends on his readiness and willingness to openly and honestly discuss what happened, the ideas, urges, motivations and fantasies which propelled the behavior and the background of experiences which would contribute to such behavior. [E.D.], as far as I can see based on the documents and based upon my interview with [E.D.], [E.D.] has steadfast -- steadfastly resisted participating in this fashion and has continued to deny any deviant sexual urge or deviant sexual behavior.
McAllister also noted that E.D. declined to participate in certain sexual offender modules, signifying a lack of motivation to participate in sexual offender treatment and that if released, he would not be highly likely to fully cooperate in treatment.
McAllister rendered a diagnosis of paraphilia, antisocial personality disorder, and opiate, alcohol and cocaine dependence.
He found the presence of paraphilia because E.D. had been convicted of two sexual assaults on women and the circumstances described in another conviction for an assault of a woman also indicated a sexual motive. According to McAllister, "such behaviors do not occur randomly or without meaning. They do not occur without motivation. They do not occur without deviant urges underlying them." Accordingly, McAllister concluded that the criteria for a diagnosis of paraphilia not otherwise specified [NOS] were met.
McAllister was also convinced that antisocial personality disorder was present. He relied upon E.D.'s substantial criminal history, extending into his adolescence, evidencing a lack of regard for the rights of others and a readiness to prey on and exploit others. In addition to a lack of conscience development, E.D. demonstrated a lack of remorse and an extraordinary degree of impulsivity. McAllister also found it significant that E.D. had profound disruptions in his social relationships, and occupational and social life because of his antisocial behaviors and their consequences. McAllister opined that E.D.'s antisocial personality disorder related to his sexually reoffending because it led "him to feel entitled to sex whether it is offered or not and feel entitled to take it through violent means."
McAllister expressed the concern that were E.D. to return to his substance abuse if released, his overall functioning would decrease, his ability to retain and apply sexual offender treatment as well as substance abuse treatment would be impaired, and he would be more likely to act on his impulses or urges.
McAllister concluded that E.D. suffers from "a mental abnormality or personality disorder which affects him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence." He concluded that the diagnosed conditions affected E.D.'s overall ability to control his behavior and that his risk of reoffending was "extremely high."
Zeiguer did not conduct an updated evaluation for the hearing in September 2005. He evaluated E.D. on August 5, 2004 and issued a report at that time. Zeiguer noted E.D.'s lack of progress in sexual offender treatment. He expressed doubt about the sincerity of E.D.'s admission regarding the 1977 offense, in which E.D. was accused of entering a woman's apartment while she was sleeping and raping her. Zeiguer explained:
[A]fter telling me all this story he told me that anyone should realize he's guilty because she was intoxicated and he's guilty of being in a situation where women who are intoxicated and out of control. And -- and I thought that was pretty absurd, first, because [it] doesn't have anything to do with the version of the victim. And -- but on the other hand, this kind of admissions are being credited by some therapist[s] and evaluators as valid proof of insight.
Zeiguer concluded that E.D.'s admission to the 1977 offense did not provide a "basis to assume that there has been any treatment effect."
Zeiguer diagnosed E.D. with severe personality disorder with antisocial features, paraphilia NOS, and polysubstance abuse. He opined that those conditions negatively affected E.D.'s ability to control his sexually offending behavior and that they constituted "a mental abnormality or personality disorder that affects him either emotionally, cognitively or volitionally so as to predispose him to commit acts of sexual violence." Zeiguer concluded that E.D. is "highly likely . . . to re-offend" and that if he were to be released under parole supervision, he would need "practically to be shadowed and the random audits of his whereabouts [would] have to be frequent and random. . . ."
E.D. presented two witnesses, Dr. Paul Fulford, a psychologist, and Keith Colbert, an employee of Irvington Counseling Center, where E.D. received treatment during the two months he was released from the STU on conditional discharge.
Fulford had evaluated E.D. in 2000. He reevaluated him on September 8 and 16, 2005, and issued an updated report. He testified that he first diagnosed E.D. in 2000 with borderline intellectual functioning, developmental reading disorder, substance abuse in remission in an institutional setting, and adult antisocial personality. He explained that the adult antisocial personality diagnosis differs from antisocial personality disorder because, although both conditions are manifested by criminal behaviors, the former is a conduct disorder, consisting of "a problem behavior but it's not a mental health behavior. It's strictly a criminal behavior." According to Fulford, the diagnosis of antisocial personality disorder is not warranted in E.D.'s case for various reasons. Although there was a record of some juvenile history, he did not deem it sufficient to justify a diagnosis of conduct disorder. Further, he felt there were additional factors that could explain E.D.'s criminal behaviors, such as intellectual limitations and the possibility of significant neuropsychological impairment, which had not been ruled out.
Fulford also disputed the paraphilia diagnosis rendered by the State's experts because of E.D.'s borderline intellectual functioning and substance abuse problem. Fulford further noted that given E.D.'s contention that he has engaged in sex with "an extreme number of sexual partners . . . his preferred mode of sexuality is not one of a criminal paraph[i]lic nature."
Accordingly, Fulford doubted that E.D.'s convictions for sexually-related offenses were the result of deviant sexual arousal. Rather, Fulford opined that the convictions could have been the result of "opportunistic or hedonistic behaviors," especially in light of E.D.'s history of substance abuse.
Fulford characterized E.D.'s treatment progress as "[f]air," stating, "He's participated. He has completed modules. He's advanced to level two. He shows some deficiency according to the TPRC report in some areas and hence, they don't recommend him to go to level three in the most recent one. I don't see any indication of therapy refusal."
Fulford's "bottom line" opinion was that E.D. was not a sexually violent predator and did not meet the criteria for confinement under the SVPA. In his view, E.D.'s risk of reoffending was less than highly likely. Accordingly, he felt E.D. could be unconditionally discharged under the SVPA, although he recommended ongoing sex offender and substance abuse treatment.
Nevertheless, Fulford provided testimony regarding E.D.'s proposed conditional discharge plan. He was provided by E.D.'s attorney with a copy of the "Preliminary Discharge Plan" that was prepared by an investigator for E.D.'s attorney. In its entirety, the plan was as follows:
Residence: [E.D.] is currently seeking placement in two locations within the City of Newark, NJ. The residential housing placements are Renaissance Community Church and Khalqia House.
Renaissance Community Church provides housing to ex-offenders returning back into the community. The supervised housing is located at 441 Orange St. Newark, NJ. The program has 24 hour supervision and curfew for all residents. If accepted into the supervised housing, it will be mandatory for [E.D.] to participate in Renaissance Challenge Conquerors Outpatient Program.
The program is located at 400 7th Avenue West, Newark, NJ. The phone number is (973) 481-3431. The Renaissance Challenge Conquerors Training Center offers substance abuse counseling, individual counseling, peer group counseling, work adjustment, social and life skill training, and random urine testing. The substance abuse groups are held on Tuesdays from 9am - 1pm, Wednesday from 1pm - 3pm and on Thursdays 9[a]m - 1pm by certified CADC counselor. Group counseling is held Monday-Tuesday-and-Thursday which will be done by Clinical Director, M.S.W. Howie Fritz.
Before being accepted into the Renaissance Housing, [E.D.] has to be assessed and evaluated.
The second option is Khalqia House, supervised housing located at 163 North 7th Street, Newark, NJ. The Khalqia house provides room and board at a rate of $45 per day. All residents must leave the premises at 10:00am and are expected to be participating in outside activities via outpatient treatment, employment, or counseling. All residents must be in their rooms by 10:00pm.
Both supportive housing locations have beds available.
Financial [E.D.] states that he currently states he has savings to cover his living expenses. Also, [E.D.] may apply for city welfare to determine if he is eligible for monthly stipend and food stamps. If [E.D.] is eligible for city welfare, he will be referred to Substance Abuse Initiative that will pay for his substance abuse outpatient treatment.
Treatment Services [E.D.] will receive outpatient treatment at Renaissance Challenge Conquerors Training Center located at 400 7th Avenue West, Newark, NJ. Phone # is 973-481-3431. Both supportive housing locations are in walking distance of the training center.
Also, he has been accepted back to Irvington Counseling services for Sex Offenders Treatment located at 21-29 Wagner Place in Irvington, NJ. His therapist will be Keith Colbert.
Vocational [E.D.] will be receiving job training skills at Renaissance Challenge Conquerors Training Center. Eventually, he will maintain a full-time employment.
Supportive Family [E.D.]'s family is very supportive of him and his transition back into the community.
He has an extremely large family in Paterson. His mother, [Mrs. D] resides at [a specified address], Paterson, NJ.
In his one-and-one-half page report, Fulford's only reference to the Preliminary Discharge Plan was as follows:
A preliminary discharge plan for [E.D.] was reviewed. Two programs were offered, along with sex offender treatment, substance abuse counseling, job training and supervision. Presuming acceptance into the proposed program, compliance with program requirements, and satisfactory participation in the treatment aspects of the programs, the discharge plan appears to meet the needs of [E.D.] and the safety of the community.
Fulford testified that a treatment center that offered substance abuse counseling, individual counseling, work adjustment, social and life skills, training and random urine testing would be an appropriate place for E.D. to go. With the kind of supervision proposed, Fulford believed that E.D.'s risk for sexual recidivism would be in the "low range."
However, Fulford acknowledged that he had no personal knowledge about the programs described in the Preliminary Discharge Plan, and he could not comment on the quality of those programs, their track record, the degree of structure or supervision they provided, and the like.
Colbert had been employed by the Irvington Counseling Center for about ten years. He described it as a mental health facility that provides services for people who are mentally ill or diagnosed with substance abuse or general problems, such as domestic violence or other life situations. The facility provides substance abuse treatment as well as sexual offender specific treatment. The facility provided treatment for E.D. during the two months he was released on conditional discharge.
According to Colbert, E.D. took responsibility for one of his sex offenses, namely the 1977 offense. E.D. described it to Colbert as a "situation where he and another person gang banged a -- a young lady and apparently he got arrested for it." Colbert acknowledged, however, that E.D. did not take responsibility for the 1994 offense, which resulted in a conviction for criminal sexual contact. It should further be noted that E.D.'s description of the 1977 offense to Colbert differed from the official offense circumstances.
According to Colbert, during the brief time his facility provided treatment to E.D., E.D. participated in group therapy and was very vocal and cooperative. Nevertheless, Colbert expressed some concern regarding a conversation he had with E.D. prior to E.D.'s return to the STU. He described it this way:
Like a significant other that was involved in his life. And then like the last couple of weeks he would talk about another female and then that kind of like sparked something with me because all along he was talking about one particular person and then -- then there was another female that, you know, associate that he would talk about. And deciding who he wanted to be with if he was ever given that chance.
And again, that's something that --that was a good thing because if he didn't tell me then he might have done something else, you know?
Colbert said his facility was willing to provide E.D. treatment again if were released.
In order to be deemed a sexually violent predator subject to involuntary commitment under the SVPA, the State must prove by clear and convincing evidence that the individual (1) has committed a sexually violent offense, (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined, and (3) has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her behavior and will reoffend. N.J.S.A. 30:4-27.26; W.Z., supra, 173 N.J. at 132.
If the court finds by clear and convincing evidence that an individual is a sexually violent predator in need of involuntary commitment, it shall issue an order authorizing the commitment of that individual to a facility for the custody, care and treatment of sexually violent predators. N.J.S.A. 30:4-27.32a. If, however, the court finds that an individual is not a sexually violent predator, it may order that individual's unconditional release. N.J.S.A. 30:4-27.32. Alternatively, it may order an individual's conditional release if it 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. . . ." N.J.S.A. 30:4-27.32c(1); In re Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002).
As we have stated, if a committee is conditionally released, and then violates a term or condition of his or her release, the court may recommit that individual, but only if the State can still meet the W.Z. standard. E.D., supra, 183 N.J. at 551. In particular, the State must establish "by clear and convincing evidence that the committee is highly likely not to control his or her sexually violent behavior and will reoffend." Ibid.
Appellate review of a trial court's decision in a commitment proceeding is extremely narrow, and the utmost deference is accorded to the trial court's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety. In re Commitment of J.P., 393 N.J. Super. 7, 11 (App. Div. 2007). The trial court's determination may only be modified where the record reveals a clear abuse of discretion or a clear lack of evidence to support it. Ibid.
Applying these principles, we address E.D.'s appeal arguments.
We first consider E.D.'s argument that the judge erred by failing to comply with the Supreme Court's remand order. E.D. argues that on remand the judge was obliged to conduct a hearing on the issue of whether her findings at the recommitment hearing were by clear and convincing evidence and, if so, with specific references to the record of the recommitment hearing, to set forth detailed reasons to support the findings by that standard. In support of this argument, E.D. directs us to two asserted infirmities in the remand proceeding. First, he argues that in her September 30, 2005 oral decision, the judge expressed in only conclusory and formulaic terms that her findings at the recommitment hearing were by clear and convincing evidence. Second, E.D. refers us to mid-hearing colloquy, on September 22, 2005, in which the judge acknowledged that at the time of the recommitment hearing she could not say what standard she was applying.
In our view, this argument does not require extended discussion. Early in this opinion, we quoted the judge's September 30, 2005 finding regarding the standard she applied at the recommitment hearing. We agree with E.D. that the finding can be characterized as conclusory. But for reasons we will explain, we do not find that dispositive. We now set forth the judge's mid-hearing colloquy:
I cannot say now that I used in returning [E.D.] to the institution the clear and convincing standard on the issue of his return. I can say with absolute confidence that whenever I make a finding as to committability it is always the result of my being convinced by clear and convincing proof. But I think the issue in the Supreme Court case is what is the standard to be applied on a recommitment hearing? And I'm not sure that I knew or applied the clear and convincing standard when I returned him here. It's a while back. If you had asked me then I don't think I would have sensed an awareness that I should be applying one standard as opposed to another.
I'm trying to be just, you know, really up front with you. So that's where you're at.
I have [the Supreme Court's opinion] in front of me, whether it's marked or not. It looks to me very much like the Court was anticipating that there was going to be a prompt annual review. And it looks to me like the Court was suggesting that this annual report or the annual review would moot the issue of whether or not he had been returned here by the use of the proper standard.
So I -- I believe the only way to go about this is to have the regular usual full dress annual or periodic review proceeding.
And it would appear to me that if he is found committable by the proper standard of proof, then whether I returned him here in compliance with the proper procedure is mooted. And that's the way I'm going to treat it.
We agree with Judge Perretti's conclusion that the annual review of E.D.'s case effectively rendered moot any possible defect in the recommitment decision. "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dept. of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotations and citation omitted). Accordingly, an appeal of a final hearing in an SVPA case may be rendered moot if, at the time of the appeal, the appellant is committed as the result of an annual review hearing. See In re Commitment of JJF, 365 N.J. Super. 486, 499 n.1 (App. Div.), certif. denied, 179 N.J. 373 (2004). In such a case, the final hearing may only be relevant insofar as the court relied on that hearing during its annual review. Ibid.
That is the situation here. The purpose of annual reviews is to "allow adequate opportunity to assess fresh information concerning the committee's dangerousness." W.Z., supra, 173 N.J. at 133. Judge Perretti correctly conducted a full evidentiary hearing in order to assess E.D.'s current dangerousness at the time of the hearing, based upon updated evaluations and evidence. If that evidence established SVPA eligibility, it would serve little purpose to search for a possible defect in a proceeding two-and-one-half years earlier. With or without such a defect, the result would be the same. The court would order E.D.'s continued confinement.
In light of this conclusion, it is not necessary for us to analyze the judge's mid-hearing colloquy. Nevertheless, we briefly comment on it. Although not completely clear, it does contain the statement that "with absolute confidence" whenever the judge made a finding as to commitability it was "always the result of [her] being convinced by clear and convincing proof." And, it is important to note that in ordering a remand, the Supreme Court did not hold that the evidence at the recommitment hearing did not satisfy the clear and convincing standard. It merely stated that the judge failed to express the standard she applied. Although the mid-hearing colloquy is subject to more than one interpretation, it is not irreconcilable with the judge's clear findings expressed on September 30, 2005, and we do not find error in this regard.
We turn next to E.D.'s argument that the judge erred in allocating to him the burden of proving that his dangerousness could be reduced acceptably by the imposition of conditions. In a prior decision, we addressed this issue and held that, generally, a judge is not obligated to consider conditional discharge for an individual deemed a sexually violent predator. JJF, supra, 365 N.J. Super. at 499. The record in that case provided no basis for such consideration. Ibid.
However, we held that "the right must be available to the committed person to demonstrate at any future hearing that he can be released on a conditional discharge with a reasonable likelihood of safety." Id. at 500 (emphasis added). We added:
The appellant's argument is that although JJF meets the criteria for continued commitment if he does not receive and comply with treatment, a properly developed record might possibly support a finding that with appropriate conditions for treatment and with supervision, he does not meet the criteria for commitment. That is, with treatment and a sound conditional release plan, he might not be highly likely to reoffend under the third prong [i.e. highly likely to engage in acts of sexual violence].
We conclude that such conditional release should always be a consideration, if properly documented and supported. . . .
[T]he trial judge should consider conditions imposed on JJF that would substantially reduce the likelihood of future acts of sexual violence. When the evidence suggests a potential for defeating this third prong under appropriate conditional release terms, we conclude the judge has the authority and the responsibility to consider the conditions, and factor that evidence into a determination of whether the third prong is met.
[C]onditions placed on the released individual can reduce the likelihood that the person will engage in acts of sexual violence, the precise determination that a judge must make under the third element, potential sexual violence. If such conditions substantially reduce the likelihood to a degree that prevents the State from proving by clear and convincing evidence that the individual is highly likely to engage in acts of sexual violence, then the individual is entitled to a conditional discharge. . . . To attain the balance that the SVPA seeks, the court must consider the entire circumstances of the individual, including conditions imposed on the individual that affect the safety of the community. But, if after a fair chance to produce evidence, a conditional discharge from SVPA confinement cannot be granted without undue risk to society, the judge should continue the commitment until the prospects for release are more optimistic. [Id. at 500-02 (emphasis added).]
Judge Perretti complied with these principles. E.D. was afforded the right to present evidence of a conditional release plan to rebut the State's contention that he continues to have serious difficulty controlling his harmful sexual behavior such that it is highly likely he will reoffend. Judge Perretti rejected that evidence, as contained in the Preliminary Discharge Plan and Fulford's testimony. She found it "so sketchy as to provide no plan." Thus, she held that E.D., "having failed totally to present any suitable release plan, documented and supported, the issue of mitigation by conditional release will not be considered." We agree with Judge Perretti's analysis.
The purported plan was nothing more than a generic statement of treatment opportunities available at two facilities. The judge was completely unfamiliar with those facilities, notwithstanding her extensive experience in hearing SVPA cases and having previously sat for many years as a criminal judge in Essex County, where the facilities are purportedly located. E.D. presented no evidence to establish the reliability of the proposed facilities and details of the treatment allegedly available. Fulford acknowledged that he had no personal knowledge regarding the facilities. There was no proof that E.D. would be accepted. Appropriate State officials had not been given the opportunity to investigate and inspect the programs to be able to comment upon their suitability. The proposed plan was nothing more than a speculative outline.
We also reject E.D.'s argument that the judge erred by not extending the hearing to allow him time to gather more evidence and present more witnesses (including, presumably, representatives of the facilities), to enable E.D. to produce competent and properly documented and supported evidence of the plan. The law was settled by our decision in JJF, E.D.'s review hearing was long overdue, upon remand from the Supreme Court the matter was ripe for consideration, and it was incumbent upon E.D. to present his evidence on the scheduled hearing dates. Indeed, when the issue was raised about the quality of the evidence being presented regarding the proposed plan, E.D.'s attorney told the judge, "I believe I can adequately address what I need to address under the case law through Mr. Colbert and Dr. Fulford." It was only after the judge suggested that it might be appropriate to bring in representatives of the facilities that E.D.'s attorney suggested she would need to extend the hearing to allow time to attempt to accomplish that. The judge did not mistakenly exercise her discretion in not extending the hearing.
Finally on this point, there is nothing to preclude E.D. from raising the issue again at a future annual review hearing or, if he chooses, requesting an interim hearing at any time. With a proper evidential showing, the issue will be considered.
We are satisfied that Judge Perretti did not shift the burden of persuasion to E.D. Unless the State recommends conditional discharge, see N.J.S.A. 30:4-27.32c(1), or unless the court, in the exercise of its inherent authority, see E.D., supra, 353 N.J. Super. at 453, sua sponte raises the issue of conditional discharge, the remaining manner in which the issue can be raised is by allowing the committee to go forward with evidence to properly place the issue before the court. See JJF, supra, 365 N.J. Super. at 500-02. Under any of the scenarios, the burden of proof by clear and convincing evidence of all of the SVPA criteria remains with the State. However, unless the issue of potential conditional discharge, such that with appropriate conditions the committee would not be highly likely to reoffend, is placed before the court by competent documented evidence, the State is not obliged to prove that no conditional discharge plan, that would defeat the highly likely to reoffend criteria, exists.
E.D.'s remaining three arguments (including the issue supplementally briefed after oral argument) can be disposed of quite summarily.
E.D. argues that the evidence in the record does not support Judge Perretti's finding that E.D. is highly likely to reoffend. We have set forth in this opinion a summary of the evidence adduced at the hearing. From our review of the record, we have no hesitancy in concluding that Judge Perretti's findings are more than amply supported by substantial credible evidence. Considering our narrow scope of review, we have no occasion to interfere with those findings on appeal. R. 2:11-3(e)(1)(A).
E.D. argues that the State's experts, in forming their opinions, impermissibly relied upon unproven allegations in hearsay documents without questioning the validity of those allegations. We do not agree.
We are satisfied that the opinions rendered by the State's experts were founded upon competent information of a type ordinarily relied upon by experts in the field in making assessments of the type involved in this case, see N.J.R.E. 703, and that the information was sufficiently reliable to be used in this regard. A presentence investigation report is a court document, prepared by the probation department. See N.J.S.A. 2C:44-6. Prior to sentencing, a defendant has the opportunity to object to any factual inaccuracies in a presentence report. State v. Newman, 132 N.J. 159, 171 (1993). The information in such reports is deemed accurate, State v. Kunz, 55 N.J. 128, 141 (1969), and has been found reliable in civil commitment proceedings. In re Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Likewise, reports of police officers and medical personnel are deemed reliable, as they are presumed to accurately relate information provided by a victim to a police officer or medical provider. In re Registrant, C.A., 146 N.J. 71, 98 (1996). Further, sworn testimony of a victim presented in a grand jury proceeding is reliable. Experts may rely upon such out-of-court statements when typically relied upon by experts in the field. State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003); State v. Burris, 298 N.J. Super. 505, 511 (App. Div.), certif. denied, 152 N.J. 187 (1997).
We note further that in an analogous context, dealing with Megan's Law registration, past offenses that include a "sexual component" are deemed relevant in assessing the risk of sexual re-offense. In re Registrant J.M., 167 N.J. 490, 505-06 (2001). And, in that context, a prior non-conviction may be considered so long as it is based on "reliable documentary hearsay evidence." C.A., supra, 146 N.J. at 109-10. We also find no impropriety in reliance by the experts, as part of the basis in forming their opinions, on the reports of prior evaluators. Mental health experts in cases such as these commonly rely upon prior evaluation reports as part of their assessment.
The forms of information we have described are deemed inherently reliable and are presumed accurate. We find no mistaken exercise of discretion in Judge Perretti's evidentiary rulings. E.D.'s arguments on this subject do not require further discussion. R. 2:11-3(e)(1)(E).
Finally, in his supplemental brief submitted after oral argument, E.D. has raised for the first time the contention that his temporary commitment seven years ago violated his federal due process rights because it was accomplished by an ex parte order under the SVPA without first affording him a hearing. We reject the argument for several reasons.
First, notwithstanding many opportunities to do so, E.D. has never raised the issue in the trial court. Appellate courts "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). E.D. has been before the trial court over the last seven years in various proceedings regarding his commitment, and he has waived other hearings to which he was entitled, including the full hearing to which he was entitled under his initial temporary order and under the SVPA within twenty days of his temporary commitment. Further, we have no occasion to depart from our holding in In re Commitments of M.G. & D.C., 331 N.J. Super. 365, 383-86 (App. Div. 2000), in which we held that due process does not require an evidentiary hearing prior to temporary commitment. Finally, in light of the additional proceedings and orders that have transpired since E.D.'s temporary commitment, a determination of any impropriety associated with his temporary commitment would have no practical effect on his current status under the SVPA and the controversy now before us on appeal, as a result of which the issue presented is moot. Greenfield, supra, 382 N.J. Super. at 157-58. We decline to issue an advisory opinion.