On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-353-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
Appellant D.W.D. appeals from the March 5, 2009 order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For reasons that follow, we dismiss the appeal as moot.
On February 23, 2004, the trial court entered an order committing appellant to the STU. Following several review hearings, the court entered an order on March 31, 2006, continuing appellant's involuntary civil commitment to the STU. Defendant appealed, and we affirmed. In re Civil Commitment of D.W.D., No. A-4184-05 (App. Div. October 12, 2006). The court conducted a review hearing on March 5, 2009, after which it entered the order from which appellant now appeals. By agreement of the parties, the appeal is to be determined on the record as supplemented by oral argument, but without briefs.
On appeal, appellant argues that the trial court's decision, finding him a sexually violent predator, is not adequately supported by clear and convincing evidence in the record. He also contends that the court committed plain error by failing to require the State to produce non-testifying experts whose opinions were relied upon by Dr. Roger Harris at the review hearing, citing State v. Clawans, 38 N.J. 162 (1962).
During the review hearing that is the subject of this appeal, the State presented testimony from Dr. Harris, a psychiatrist, and introduced into evidence a compilation of appellant's treatment notes at the STU that included the multi-disciplinary treatment team report of January 6, 2009. Dr. Harris diagnosed appellant as suffering from pedophilia, boys not exclusive; paraphilia NOS,*fn1 boys postpubertal, not exclusive, with sadistic features; and on Axis II, with a narcissistic personality disorder, with antisocial and borderline traits. The doctor found that D.W.D. continues to have "strongly ingrained patterns of deviant arousal." The doctor opined that appellant's risk to sexually re-offend was moderate to high. Accordingly, Dr. Harris concluded with reasonable medical certainty that D.W.D. "meets [the] criteria for civil commitment under New Jersey's SVP laws." Although D.W.D. did not call any experts on his own behalf, he did testify. D.W.D. testified that while previously he had sexual fantasies about molesting young children, he no longer continues to do so. He denied telling Dr. Harris that he presently has deviant sexual arousals, but rather he was talking to Dr. Harris "in [the] past tense."
At conclusion of the March 5, 2009 hearing, the trial court rendered an oral opinion determining that appellant is a sexually violent predator in need of continued treatment at the STU.
In light of all of the evidence, particularly the examination and report of Dr. Harris, I find that the State has proven by clear and convincing evidence that [D.W.D.] has serious difficulty controlling his... harmful sexual behavior. That it has been established and reestablished that he is a sexually violent predator. And that it is highly likely that he will not control his... sexually violent behavior, and will reoffend in the reasonably foreseeable future, if not contained in a controlled environment.
At oral argument, we raise the question of whether the appeal is moot as the order appealed from directed that a review hearing be conducted in February 2010. Following oral argument, we were advised that a review hearing was conducted on February 18, 2010, and the court entered an order that day continuing appellant's commitment to the STU as a sexually violent predator under the SPVA.
"Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts." In re City of Plainfield's Park-Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). Accordingly, courts "will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002). Nevertheless, "[c]courts occasionally will rule on such matters where they are of substantial importance and are capable of repetition while evading review." Ibid.
Here, with the trial court having conducted an intervening review hearing continuing appellant's commitment to the STU, we conclude that the appeal is moot. See In re Commitment of JJF, 365 N.J. Super. 486, 499 ...