June 10, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF N.U.M., SVP-406-05.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-406-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2008
Before Judges Coburn and Chambers.
Defendant appeals a decision that involuntarily commits him pursuant to New Jersey's Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38.
On appeal, defendant offers the following arguments:
THE FAILURE TO PROVIDE N.U.M. WITH A COPY OF THE PETITION FOR CIVIL COMMITMENT BEFORE THE TEMPORARY COMMITMENT HEARING DENIED HIM THE OPPORTUNITY TO CHALLENGE THE PETITION ON ITS FACE AND DENIED HIM DUE PROCESS.
A. N.U.M. Did Not Receive Adequate Notice of the Petition
B. There Was No Probable Cause for the Temporary Commitment
TO THE EXTENT THAT THE SVPA PERMITS COMMITMENT OF A PERSON WHO WAS NOT SERVING A SENTENCE FOR A SEXUALLY VIOLENT OFFENSE WHEN COMMITTED AND THERE WAS NO EVIDENCE OF RECENT DANGEROUS BEHAVIOR OR THREAT IT IS UNCONSTITUTIONALLY VAGUE AND DENIED N.U.M. DUE PROCESS OF LAW.
THE FAILURE OF COUNSEL TO CHALLENGE THE LACK OF PROBABLE CAUSE IN THE PETITION AND THE EXCESSIVE DELAY IN PROSECUTING THIS APPEAL RENDERED HIS COUNSEL CONSTITUTIONALLY INEFFECTIVE AT BOTH STAGES OF THE PROCEEDING.
A. Appellate Counsel Was Constitutionally Ineffective.
B. Counsel Was Constitutionally Ineffective for Not Challenging the Lack of Probable Cause on the Face of the Petition
THE COURT IMPROPERLY RELIED ON INADMISSIBLE HEARSAY TO SUPPORT ITS FINDING THAT N.U.M. SUFFERS A MENTAL ABNORMALITY THAT IMPAIRS HIS VOLITIONAL CONTROL.
THE STATE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT N.U.M. IS A SEXUALLY VIOLENT PREDATOR.
After carefully considering the arguments, briefs and record, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Perretti in her thorough and well-reasoned oral opinion delivered on April 26, 2006. Nevertheless, we add the following comments.
Defendant has an extensive history of criminal behavior, including several sexual crimes. In 1983, defendant raped a 14-year old girl. In 1984, defendant repeatedly raped another 14-year old girl at knife-point, which led to him pleading guilty to kidnapping and aggravated sexual assault. He was sentenced to 15 years imprisonment at Avenel. In 1990, defendant was re-sentenced and committed to the Adult Diagnostic and Treatment Center for 10 years.
In 2005, the State started proceedings to civilly commit defendant under the SVPA. Its petition was supported by two clinical certificates that noted that defendant blamed the victims for making false accusations. He also "joked" to one of the psychiatrists that he raped seven or eight other children prior to 1983. As a result of this petition, defendant was temporarily committed to the Special Treatment Unit pending a final hearing. On April 24 through 26, 2006, the final hearing was held and the State presented testimony from Dr. Howard Gilman, a board certified psychiatrist, and Dr. Brian Friedman, a clinical psychologist. Both concluded that defendant had a "high risk" of committing more sexually violent crimes.
Based on this testimony, Judge Perretti found by clear and convincing evidence that defendant has difficulty controlling his sexually violent behavior, that he will take what he wants, when he wants it, and that he is likely to commit sexually violent acts in the future, thus satisfying the standard for involuntary commitment under SVPA.
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