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In re Civil Commitment of J.M.B.

February 23, 2009

IN THE MATTER OF THE CIVIL COMMITMENT OF J.M.B., SVP-358-04


On certification to the Superior Court, Appellate Division, whose opinion is reported at 395 N.J. Super. 69 (2007).

SYLLABUS BY THE COURT

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, defines a "sexually violent predator" as a person who has been "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense." A "sexually violent offense" can be any offense specifically listed in the SPVA, N.J.S.A. 30:4-27.26(a) (subsection (a)); such offenses include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, certain kinds of kidnapping, and felony murder involving sexual assault. In addition, under N.J.S.A. 30:4-27.26(b) (subsection (b)) "any offense that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." The key issue in this appeal is whether J.M.B. was convicted of a sexually violent offense as defined under subsection (b).

J.M.B. was convicted of eight prior offenses, most of which involve patterned and unusual behavior in respect of his victims. In each case, he pleaded guilty and was sentenced to serve time in a correctional facility or was fined. In the first offense, (April 17, 1977), J.M.B admitted to picking up ten-year-old R.J., driving him to a wooded area, and attempting to tie him up. Although unsuccessful, J.M.B. caused R.J. to suffer rope burns. J.M.B. also admitted to picking up two other boys two hours later and driving them to his home, taking them to his bedroom and giving them marijuana and alcohol. He tied up one of the boy's hands and feet. J.M.B. pleaded guilty to contributing to the delinquency of a minor, distribution of marijuana to a minor, and threatening to kill. He was sentenced to an indeterminate term at the Youth Reception and Correction Center, which was suspended and a year's probation conditioned on continued psychiatric treatment.

The second incident, (October 7, 1981), J.M.B. offered a ride to fifteen-year-old E.H., who was hitchhiking to school. J.M.B. asked E.H. if he wanted to "get high" and they drove to a wooded area. Once there, E.H. reported that J.M.B. grabbed him by the hair, threw him to the ground, held a knife to his throat, and told him to lie on his stomach. E.H. managed to run away. J.M.B., on the other hand, claimed to have been giving E.H. a ride to school, that E.H. directed them to a wooded area because he had drugs, and that he was assaulted by E.H. J.M.B. was indicted in Somerset County for second-degree aggravated assault and third-degree criminal restraint. The indictment was issued in conjunction with a Middlesex County indictment based on events that took place one month later in that county. J.M.B. denied any sexual gratification from this incident. He pleaded guilty to criminal restraint. The third offense occurred while J.M.B. was free on bail for the E.H. incident. Sixteen-year-old A.C. reported that he was kidnapped by J.M.B. when J.M.B. pulled his car over to the side of the road where A.C. was walking to ask for directions. When A.C. leaned into the car's compartment to look at a map that J.M.B. was showing him, he was knocked unconscious. He awoke to find his hands and feet tied behind him, his hair taped and tied by a rope attached to his feet, his eyes blindfolded, and his mouth gagged and taped shut. After a few hours, J.M.B. removed the gag and told A.C. that he would only let him go if he allowed J.M.B. to cut off his hair. J.M.B. thereupon ripped out or cut A.C.'s hair. J.M.B. then cut the ropes and drove A.C., still blindfolded, to a wooded area and abandoned him there. In a psychological evaluation later conducted for the Parole Board by a clinical psychologist, J.M.B. essentially admitted that the facts recited by A.C. to police were essentially correct. J.M.B. was charged with kidnapping and aggravated assault. He pleaded guilty and received as sentence of fifteen years for both the A.C. and E.H. incidents. It was recommended that he serve his sentence in the Department of Corrections Sex Offender Unit. During a psychologist's interview, J.M.B. first acknowledged his behavioral pattern of finding an adolescent male, incapacitating him, tying him up, and pulling his hair out. He denied engaging in overt sexual acts with his victims but admitted that he found their bondage sexually arousing.

In the fourth incident, (July 7, 1989), twenty-year-old F.S. told police that he and J.M.B. had engaged in bondage behavior over a period of six-months until the final encounter in July when J.M.B. forced F.S into his house and tied him up, including tying his hair to a rope affixed to the ceiling. J.M.B. threatened F.S., cut off all of his hair, and then drove him home. In a later search of J.M.B.'s car and home, police found a stun gun, photos of teenage males performing sexual acts, bondage paraphernalia, hair fibers in baggies, and clumps of used duct tape that had hair fibers stuck to them. J.M.B. admitted to handcuffing and gagging F.S., tying his hands and feet together, and tying him to the ceiling beam. This incident led to J.M.B.'s first and only charge for a "sexually violent offense" as listed in the SVPA. He was indicted for criminal restraint, terroristic threats, possession of a weapon for unlawful purposes, kidnapping, aggravated assault, and criminal sexual contact. J.M.B. pleaded guilty to criminal restraint, terroristic threats, and possession of a weapon for unlawful purposes. All other charges were dismissed. He was sentenced to a term of seven years, with a two-and-one-half year period of parole ineligibility. The fifth offense (July 1995) occurred when J.M.B. befriended fifteen-year-old S.S., who was a runaway from an in-house program for troubled youth. J.M.B. repeatedly gave S.S. money in exchange for the chance to tie him up. On one occasion, J.M.B. touched S.S.'s penis but stopped when S.S. told him to. According to S.S, J.M.B. would sit in front of him and watch him try to remove his bindings and would sometimes watch male bondage videos. J.M.B. was indicted for interference with the custody of a committed person, pleaded guilty and was sentenced to five years of probation, which was revoked on June 25, 1999 for failure to remain arrest free.

On his sixth offense, (April 3, 1997), J.M.B. was arrested for harassing nineteen-year-old W.S. J.M.B. tied up W.S. and put duct tape over his eyes. He stuffed a wet rag in W.S.'s mouth. W.S was eventually untied and J.M.B. eventually drove him home. J.M.B. admitted to the incident as described by W.S. to the police. The harassment charge was downgraded in municipal court to a violation of a local loitering ordinance. J.M.B. pleaded guilty and paid a fine. For his seventh offense, September 9, 1997, J.M.B.'s car was stopped for a motor vehicle violation. Handcuffs were observed by the officer in plain view. J.M.B. was arrested and his car was searched, where other bondage items were found. J.M.B. was charged with illegal possession of handcuffs and other motor vehicle violations. He pleaded guilty to the handcuff possession charge and was fined. The eighth offense, (April 7, 1999), resulted from a search of J.M.B.'s car during a stop on an outstanding traffic violation. During the search, police found hundreds of photographs depicting young men who were bound and gagged. The men were arranged in poses and some were blindfolded. Several photographs had locks of hair taped to them. At least two of the pictures depicted what appeared to be an erect penis in close proximity to the young men's faces. J.M.B. provided a statement to police, claiming that the boys in the photos were willing participants. He stated he would go to his bedroom and masturbate while reading books involving bondage. He admitted his bondage activities were sex related but denied any sexual involvement with the participants. J.M.B. further stated that the "penis" in the pictures was not real. The police also questioned several boys that appeared in the photos. J.M.B was charged with three counts of harassment, one count of contempt, and three counts of luring and enticing a child. He was released on bail on the condition that he had no contact with the victims. Because J.M.B contacted J.R. several times, he was arrested and charged with witness tampering. The photographs seized were eventually suppressed, leaving the only viable charge of witness tampering. J.M.B. pleaded guilty and was sentenced to five years imprisonment.

On January 22, 2004, a month before J.M.B was scheduled to be released from prison, the Attorney General filed a petition for J.M.B.'s civil commitment under subsection (b). According to the State, J.M.B. is a sexually violent predator who requires civil commitment. Because the SVPA proceeding is civil in nature, the commitment court held that the exclusionary rule, which barred the use of the photographic evidence during the criminal trial, would not apply in a civil commitment hearing. As such the photographs found in J.M.B.'s car could be used in the civil commitment hearing. The State presented three expert witnesses who testified that J.M.B. suffered from "sexual sadism" and personality disorder with antisocial features. They further testified that his disorder was so strong that it could not be deterred and likely would result in continued recidivism. At the conclusion of the hearing, the civil commitment court found J.M.B. subject to civil commitment, making specific findings that four of the offenses should be considered sexually violent under section (b)'s definition, specifically, those relating to R.J., A.C., F.S., and S.S. The court ordered J.M.B. to be committed to the Department of Corrections' Special Treatment Unit. The Appellate Division affirmed the decision of the trial court, agreeing that J.M.B.'s underlying offenses should be considered sexually violent offenses under subsection (b).

The Supreme Court granted certification.

HELD: When faced with an application for civil commitment under N.J.S.A. 30:4-27.26(b), a court may consider the circumstances that led to the qualifying prior conviction. When that conduct is substantially equivalent to the sexually violent conduct encompassed by the offenses in N.J.S.A. 30:4-27.26(a), then that prior conviction may provide the predicate for a civil commitment application under subsection (b). That determination may be made by the committing court, on application of the Attorney General.

1. The legislative history of the SVPA provides little guidance on the application of section (b)'s definition of a sexually violent offense. However, the plain language, purpose, and internal logic of the SVPA all signal that it was intended to grant courts the authority to approve the involuntary commitment of an individual who does not have a conviction for a sexually violent offense as defined in subsection (a). Subsection (b) must be read to confer additional authority to a court to determine an offense, which is not listed in subsection (a) and which does not have substantially the same elements as an enumerated offense, to be, nevertheless, a sexually violent offense. This interpretation appears consistent with the overall intent of the Legislature when enacting this comprehensive scheme for civil commitment of sexual predators. (Pp. 3-9)

2. The Legislature's intent to apply the SVPA to those whose convictions occurred before the enactment of the SVPA also informs the Court's interpretation of subsection (b). Nevertheless, subsection (b) does not confer unlimited authority on the Attorney General to attempt to commit those persons convicted of offenses other than those listed in subsection (a); the two subsections must be harmonized. The legislative intent in including subsection (b)'s authority within the definition of a sexually violent offense was to expand, narrowly and with reference to the conduct encompassed by the crimes listed in subsection (a)'s definition, the offenses for which subsection (b) would provide the predicate to an application for civil commitment under the SVPA. In a civil commitment SPVA proceeding, two essential findings must be established: 1) the fact that the prior, predicate conviction must be shown through the State's proof that the conviction was entered and that the person who was convicted is the same person whose commitment is sought ; and 2) the person's conduct, in the circumstances underlying the conviction, and the "fact" that the circumstances of the individual's case satisfy the substantially equivalent standard for sexually violent conduct, both of which are necessary for civil commitment. The SVPA provides the applicable standard of proof: clear and convincing evidence. (Pp. 9-15)

3. Based on the Court's interpretation of subsection (b)'s standard for finding a sexually violent offense, namely that it requires substantially equivalent conduct to the conduct captured by the offenses listed in subsection (a), J.M.B.'s offense against A.C. meets that definition. Based on that offense alone, the Court can affirm the Appellate Division's decision affirming the order of civil commitment entered against J.M.B. In addition to the fact that J.M.B.'s conduct during the incident shared many characteristics and elements of the subsection (a) offense of kidnapping, the evidence of the violent and sexual nature of J.M.B.'s conduct toward A.C. was overwhelming. The record as it pertains solely to the offense involving A.C. provided adequate support for the civil commitment court's finding that J.M.B. had been convicted of a subsection (b) predicate crime for a sexually violent offense, based on the substantially equivalent conduct standard. There was substantial credible evidence to support the court's findings, based on the clear and convincing standard required by the SVPA. (Pp. 39-43)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, in which JUSTICE WALLACE joins, generally concurs with the measured approach the majority takes in construing the reach of the SVPA but cannot agree that the Legislature intended a standard other than proof beyond a reasonable doubt to establish a sexually violent offense, which triggers the potential for life-time involuntary commitment.

CHIEF JUSTICE RABNER and JUSTICES LONG, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA'S opinion. JUSTICE ALBIN wrote a separate dissenting opinion, in which JUSTICE WALLACE joins.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 8, 2008

Following a hearing, a trial court ordered the civil commitment of J.M.B. to the Department of Corrections' Special Treatment Unit (STU) for sexually violent persons. The Attorney General petitioned for J.M.B.'s commitment under New Jersey's Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to -27.38, which defines a "sexually violent predator" as a person who has been "convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense." N.J.S.A. 30:4-27.26. A "sexually violent offense" can be any offense specifically listed as such in the SVPA. See N.J.S.A. 30:4-27.26(a) (subsection (a)). It also can be "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b) (subsection (b)). Because J.M.B.'s convictions were not for any of the offenses listed in the SVPA, the State petitioned for civil commitment under the subsection (b) standard.

The civil commitment court found that four of J.M.B.'s prior offenses constituted "sexually violent offenses" and ordered his commitment to the STU. J.M.B. appealed, raising several novel questions about the application of subsection (b)'s definition of "sexually violent offense" as the basis for civil commitment. In affirming the trial court's order of commitment, the Appellate Division rejected all of J.M.B.'s arguments. In re Commitment of J.M.B., 395 N.J. Super. 69 (2007). We granted J.M.B.'s petition for certification, 193 N.J. 222 (2007), and now we also affirm the order of commitment.

I.

J.M.B. has been convicted of eight prior offenses, most of which involve patterned and unusual behavior in respect of his victims. In each case he pleaded guilty and was sentenced to serve time in a correctional facility or was fined. According to the State, J.M.B. is a sexually violent predator who requires civil commitment notwithstanding that only once was he charged with an offense that is included in subsection (a)'s list of sexually violent offenses, (incident number four involving the victim, F.S., in 1989), and that charge was dismissed when J.M.B. pleaded guilty to different charges. Before summarizing the incidents underlying J.M.B.'s offenses and the commitment court's findings, we turn first to the unique aspect of the statutory scheme that provides the basis for the State's civil commitment application in this matter.

II.

A.

New Jersey's SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Legislature enacted the SVPA to protect other members of society from the danger posed by sexually violent predators. N.J.S.A. 30:4-27.25. The Act is intended "to modify the involuntary civil commitment process in recognition of the need for commitment of those sexually violent predators who pose a danger to others should they be returned to society." N.J.S.A. 30:4-27.25(c). Whereas earlier laws provided for the involuntary commitment of the mentally ill, the Legislature declared the new legislation necessary because "[t]he nature of the mental condition from which a sexually violent predator may suffer may not always lend itself to characterization under the existing statutory standard, although civil commitment may nonetheless be warranted due to the danger the person may pose to others as a result of the mental condition." N.J.S.A. 30:4-27.25(b).

The Act provides that "[w]hen it appears that a person may meet the criteria of a sexually violent predator as defined in this act, the agency with jurisdiction shall give written notice to the Attorney General." N.J.S.A. 30:4-27.27(a). Upon notification, the Attorney General may initiate a court proceeding to have a person, including an inmate scheduled for release upon expiration of his or her maximum term of incarceration, involuntarily committed as a sexually violent predator, "by submission to the court of two clinical certificates for a sexually violent predator, at least one of which is prepared by a psychiatrist."

N.J.S.A. 30:4-27.28b & c. [State v. Mumin, 361 N.J. Super. 370, 382 (App. Div. 2003)].

In commitment proceedings, the State must demonstrate by clear and convincing evidence that the individual poses "a threat to the health and safety of others if he or she were found . . . to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 130 (2002). Put succinctly, "[c]ommitment under the Act is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct." State v. Bellamy, 178 N.J. 127, 136 (2003).

In order to trigger application of the provisions of the SVPA, a person must first be deemed a "sexually violent predator." N.J.S.A. 30:4-27.27(a). A "sexually violent predator" is defined as a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment. [N.J.S.A. 30:4-27.26.]

A "sexually violent offense," in turn, carries two definitions:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or (b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense. [N.J.S.A. 30:4-27.26(a), (b).]

Although we have, on several occasions, addressed the legal and procedural requirements for involuntary commitment under subsection (a), see, e.g., Bellamy, supra, 178 N.J. at 136; In re Commitment of W.Z., supra, 173 N.J. at 125-34, for the first time, we are being asked by the Attorney General to approve the continued involuntary commitment of an inmate under subsection (b).

B.

The legislative history of the SVPA itself gives little guidance on the application of N.J.S.A. 30:4-27.26(b)'s definition of a sexually violent offense. However, the plain language, purpose, and internal logic of the Act all signal that it was intended to grant courts the authority to approve the involuntary commitment of an individual who does not have a conviction for a sexually violent offense as defined in subsection (a).

First, the language of subsection (b) plainly states that a sexually violent offense is "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 3:40-27.26(b). It is significant that, although subsection (a) contains a provision intended to encompass federal crimes, and crimes of "this State or another state" that have "substantially the same elements as any offense enumerated" in N.J.S.A. 30:4-27.26(a), the Legislature also included the authorization in subsection (b) for a court to make its own "finding on the record, based on the circumstances of the case," that a "person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). That provision would be rendered a nullity were it to be read as simply a reiteration of the concept in subsection (a), that a court may find a crime having "substantially the same elements as an enumerated offense" to be a sexually violent offense.

Interpretations that render the Legislature's words mere surplusage are disfavored. Rather, as we said in D'Annunzio v. Prudential Insurance Company of America, 192 N.J. 110 (2005), our task requires that every effort be made to find vitality in the chosen language.

"When interpreting a statute or regulation, we endeavor to give meaning to all words and to avoid an interpretation that reduces specific language to mere surplusage." DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 307 (2005) (citing Franklin Tower One v. N.M., 157 N.J. 602, 613 (1999); Norman J. Singer, 2A Sutherland Statutory Construction § 46:06, at 190-92 (6th ed. 2000)). [D'Annunzio, supra, 192 N.J. at 129.]

See also Ramapo River Reserve Homeowners Ass'n, Inc. v. Borough of Oakland, 186 N.J. 439, 450 (2006) (recognizing need to "ascribe to the statutory words their ordinary meaning and significance, and [to] read them in context with related provisions so as to give sense to the legislation as a whole" in fulfillment of court's duty to reconcile discrete statutory provisions and construe them as "a unitary and harmonious whole") (quotations and internal citations omitted). Applying those principles to subsection (b) requires that it be read to confer additional authority on a court to determine an offense, which is not listed in subsection (a) and which does not have substantially the same elements as an enumerated offense, to be, nevertheless, a sexually violent offense.

That interpretation appears consistent with the overall intent of the Legislature when enacting this comprehensive scheme for the civil commitment of sexual predators. The Legislative findings clearly make paramount the SVPA's intention to protect society through the "commitment of those sexually violent predators who pose a danger to others should they be returned to society." N.J.S.A. 30:4-27.25(c). In furtherance of that stated goal, the Legislature found it necessary to include the additional authority conferred through subsection (b), authorizing a court to identify a person as a sexually violent predator even when he or she has not been convicted of an offense that fits precisely, or with substantial equivalence, the elements of the crimes encompassed in subsection (a)'s listing.

Indeed, subsection (b) is not the only instance within the SVPA in which the Legislature sought to authorize the involuntary commitment of persons who have not been convicted of a subsection (a) enumerated offense. The Act also provides for the civil commitment of "persons lacking mental capacity to stand trial." N.J.S.A. 30:4-27.33. Although neither a person unable to stand trial nor a person convicted of a crime other than those listed in subsection (a) will technically have been convicted of an enumerated sexually violent offense, it is clear that the Legislature intended to endow the Attorney General with the authority to seek the continued involuntary commitment of persons falling into both categories.

The Legislature's intent to apply the SVPA to those whose convictions occurred before the enactment of the SVPA also informs our interpretation of subsection (b). In Bellamy, supra, this Court held that "civil commitment under the Act is a collateral consequence" of a defendant's decision to plead guilty to an enumerated offense. 178 N.J. at 138. This Court found therefore that an inmate convicted prior to enactment of the SVPA "of a predicate offense under the Act" need not have been informed of the Act's consequences. Id. at 138-39, 143. At the same time, however, the Court imposed a prospective requirement that, "prior to accepting a guilty plea to a predicate offense, trial courts must inform defendants of possible consequences under the Act." Id. at 143. Thus, Bellamy makes clear that, although it is desirable, and now required, for a person whose convictions may subject him or her to commitment under the SVPA to be informed of such a consequence prior to entering a guilty plea, the lack of that notice does not preclude application of the SVPA to those whose convictions preceded the Bellamy holding. That the SVPA permits involuntary commitment of individuals who pleaded guilty to predicate offenses without notice is consistent with the holding that subsection (b) authorizes a court to determine, post-conviction, whether a person's conduct in connection with a conviction for an offense not listed in subsection (a) nevertheless may be found to constitute a sexually violent offense.

That said, subsection (b) does not confer unlimited authority on the Attorney General to seek out persons convicted of offenses other than those listed in subsection (a), and to attempt indiscriminately to commit them. Subsection (b)'s open-ended definition cannot reasonably be read as an invitation to commit persons. The two subsections must be harmonized for otherwise subsection (b)'s definition would swallow up subsection (a)'s specific grounds for commitment: the list of enumerated offenses and the delineation of foreign and other convictions comprised of "substantially the same" elements.

To our knowledge, the only decision to address the relationship between the two provisions, In re Commitment of J.P., 393 N.J. Super. 7 (App. Div. 2007), reasoned that such harmonization was necessary when determining the findings required for a sexually violent offense under subsection (b). The J.P. court focused on the type of conduct that subsection (a)'s offenses capture.

The open-ended definition in subsection (b) must be interpreted in the light of the scope of the associated specific definitions in subparagraph (a). . . . When read together, the rational construction of these two paragraphs shows that the Legislature considered it appropriate to expand "sexually violent offense" to also include conduct which demonstrates the elements of the enumerated sexually violent offenses delineated in subsection (a), even though the conviction may be for an offense other than those specifically listed. The specific findings requirement in subsection (b) assures that not just any conduct suffices; the demonstrated conduct must be in the nature of the type of sexual offenses enumerated. [Id. at 16-17 (emphasis added).]

The approach taken in In re Commitment of J.P. reads the two provisions together and sensibly reconciles them. Subsection (b) must encompass more than just those offenses whose elements are substantially equivalent to the predicate offenses listed in subsection (a) because otherwise it would be mere surplusage. At the same time, subsection (b) cannot be so broad as to subsume subsection (a). By focusing on a defendant's conduct underlying an offense claimed to be sexually violent under subsection (b), and not just on the elements of the offense, the conduct precipitating commitment under subsection (b)'s definition of a sexually violent offense can be kept compatible with the standards gleaned from the crimes identified in subsection (a), notwithstanding that the predicate conviction is for an offense whose elements do not encompass completely the sexually violent conduct.

The "substantially equivalent conduct" standard that we find the Legislature envisioned, when allowing for this additional sliver of offenses to be swept in by subsection (b)'s definition of a sexually violent offense, is both narrow and practical. In the case where, by happenstance (such as a plea bargain or otherwise lenient charging) a defendant ends up with a conviction for a crime whose elements do not match, with substantial similarity, the offenses listed in subsection (a), the substantial equivalence of the defendant's underlying conduct in connection with that conviction ought to keep the perpetrator within the purview of the SVPA's application.

We conclude that the legislative intent in including subsection (b)'s authority within the definition of a sexually violent offense was to expand, narrowly and with reference to the conduct encompassed by the crimes listed in subsection (a)'s definition, the offenses for which subsection (b) would provide the predicate to an application for civil commitment under the SVPA. We hold therefore that when faced with an application for civil commitment under subsection (b), a court may consider the circumstances that led to the qualifying prior conviction. When that conduct is substantially equivalent to the sexually violent conduct encompassed by the offenses listed in subsection (a), then that prior conviction may provide the predicate for a commitment application under subsection (b). We further hold that that determination may be made by the committing court, on application by the Attorney General. The SVPA clearly contemplated that such a determination might be made after the fact of conviction and at the time commitment is sought because the SVPA plainly applies to persons whose convictions preceded the SVPA's enactment.

In such an application, the proofs are straightforward. The individual's prior conviction would have been established through a trial based on proof beyond a reasonable doubt, or through the entry of a guilty plea. However, the SVPA is not part of the criminal code and it has been clearly determined that civil commitment under the SVPA is not punitive. See Bellamy, supra, 178 N.J. at 138. Therefore, and in sum, in the civil SVPA commitment proceeding two essential findings must be established. First, the fact of the prior, predicate conviction must be established. To accomplish that the State must prove that the conviction was entered and that the person who was convicted is the same person whose commitment is sought. Second, the person's conduct, in the circumstances underlying the conviction, must be demonstrated to be substantially equivalent to the sexually violent conduct that concerned the Legislature and led to the inclusion of the offenses listed in subsection (a). To prove the "fact" of the ...


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