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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
We affirmed the trial court's determination in an unpublished opinion, ibid., and the Supreme Court granted E.D.'s petition for certification.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.
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 ...