On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-202-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Carchman and Ashrafi.
By order of May 7, 2002, appellant F.D. was civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.28. Following an appeal, the case was remanded in light of In re Commitment of W.Z., 173 N.J. 109 (2002). Following a remand hearing, Judge Philip M. Freedman again continued the commitment and entered an April 27, 2003 final order. Appellant appeals from both orders, and we consolidated the appeals. We now affirm.
We first note that although this is an appeal from 2002 and 2003 hearings resulting in a civil commitment, a hearing was conducted in 2009 that resulted in appellant's recommitment as a sexually violent predator. The July 27, 2009 order of commitment is not before us on appeal. The State argues as a threshold matter that the July 2009 proceeding renders an appeal of the factual merits of the 2002 and 2003 proceedings moot. For the reasons set forth below, we agree; however, appellant has raised additional issues that may reoccur, and we will address them the appeal. We first address the claim of mootness.
In support of its claim that appellant's 2002 and 2003 appeals are moot, the State relies on In re the Commitment of E.D., 183 N.J. 536, 552 (2005) (concluding that procedural issues may reoccur, but the remaining issues were moot because of waiver of the recommitment hearing) and In re the Commitment of J.J.F., 365 N.J. Super. 486, 499 n.1 (App. Div.), cert. denied, 179 N.J. 373 (2004) (observing that issues arising in two of the three consolidated appeals were moot since the issue before the court was the merits of appellant's present commitment not prior hearings resulting in commitment).
We observe that "[t]he focus of the SVPA is on the subject's current mental condition and the present danger to the public[.]" In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002) (emphasis added); In re Commitment of P.Z.H., 377 N.J. Super. 458, 465-66 (App. Div. 2005) (citing W.Z., supra, 173 N.J. at 132-34). F.D.'s mental state in 2002 and 2003 is irrelevant to his present condition, and the subsequent recommitment hearing in 2009 renders the earlier appeals moot. Notwithstanding our view that the substantive merits of appellant's commitment are moot, for completeness, we add that we have carefully reviewed the record and conclude that appellant's argument that in the 2002 and 2003 hearings, the State failed to establish by clear and convincing evidence that appellant should be committed is without merit. R. 2:11-3(e)(2).
We deem it unnecessary to relate appellant's extensive criminal history relevant or the proofs adduced at the 2002 and 2003 hearings. In his opinions, Judge Freedman carefully assessed the relevant proofs as to the issue of commitment; we affirm substantially for the reasons set forth by Judge Freedman in his comprehensive and considered oral opinions of May 7, 2002, November 21, 2002 and April 21, 2003.
Even though we have determined that the merits of appellant's commitment are moot, other issues are not. If "[t]he question of the right[s] of similarly situated persons . . . is likely to recur[,]" "it is . . . of significant public importance" and "the issue is likely to evade review," we may consider review "even if [the decision] may not impact the individual involved in the appeal." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 258 (App. Div. 2006). Appellant asserts:
THE COURT VIOLATED F.D'S RIGHTS AND RELINQUISHED CONTROL OF THE COURT TO CORRECTIONS WHEN IT PERMITTED THE RESPONDENT TO BE SHACKLED WHILE THE HEARING WAS CONDUCTED.
THE COURT ERRED IN CONSIDERING AS SUBSTANTIVE EVIDENCE THE HEARSAY CONTAINED IN THE PROFFERED EXHIBITS AND THE TESTIMONY OF THE EXPERT WITNESS.
PRIOR FORENSIC EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL.
Here, the issues of the appellant's shackling and the admissibility of hearsay evidence utilized at the hearings are matters that, although having no effect on the present controversy, remain issues that are likely to recur, are of significant public importance and are likely to evade review because of the annual nature of the review process. See N.J.S.A. 30:4-27.35. We now address those issues.
Appellant argues that it was inappropriate for him to be shackled at the 2002 and 2003 hearings before Judge Freedman. He argues that he was not an inmate at a prison, nor was he a criminal defendant. He contends that he was protected under the Patient's Bill of Rights, which were codified at N.J.S.A. 30:4-24.2d and state in relevant part: Each patient in treatment shall have the following rights . . . 3) To be free from physical restraint and isolation. Except for emergency situations, in which a patient has caused substantial property damage or has attempted to harm himself or others and in which less restrictive means of restraint are not feasible, a patient may be physically restrained or placed in isolation only on a medical director's written order or that of his physician designee which explains the rationale for such action.
Appellant alludes to proposed N.J.A.C. 10:36A-2.3 for the proposition that he had "the right to be free from unnecessary physical restraint except for situations where a substantial or imminent threat to harm himself or others" was shown. (Citing 38 N.J.R. 1984(a)). He urges that the relevant rule applying to criminal trials, although discretionary, limits the use of restraints to "exceptional circumstances" that must be explained on the record. State v. Artwell, 177 N.J. 526 (2003); State v. Zhu, 165 N.J. 544 (2000); State v. Mance, 300 N.J. Super. 37 (App. Div. 1997). See also State v. Kuchera, 198 N.J. 482 (2009) (extending the rule in Artwell to prosecution witnesses).
The State counters by asserting that the SVPA excludes SVPA committees from protection under the Patient's Bill of Rights and instead provides that the rights of persons committed under the SVPA are governed by the regulations promulgated by the Commissioners of Human Services and the Department of Corrections, in consultation with the Attorney General.
N.J.S.A. 30:4-27.34d. As for the proposed rule cited by appellant, the regulation was not adopted as proposed. Instead, ...