IN THE MATTER OF THE CIVIL COMMITMENT OF F.D SVP-202-01

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4637-02T24637-02T2

A-2267-05T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF F.D.,

SVP-202-01.

________________________________________________________________

 

Submitted November 17, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. SVP-202-01.

Ronald K. Chen, Public Advocate, attorney

for appellant (Joan D. Van Pelt, Deputy

Public Advocate, of counsel and on the

brief).

Anne Milgram, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; David L.

DaCosta, Deputy Attorney General, on the

brief).

PER CURIAM

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.

I.

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:

POINT ONE

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.

POINT TWO

THE COURT ERRED IN CONSIDERING AS SUBSTANTIVE EVIDENCE THE HEARSAY CONTAINED IN THE PROFFERED EXHIBITS AND THE TESTIMONY OF THE EXPERT WITNESS.

POINT THREE

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.

II.

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, N.J.A.C. 10:36A-2.3 provides that:

(a) Each resident shall have the following rights, which may be curtailed, suspended or denied in accordance with internal management procedures and policies, and pursuant to N.J.A.C. 10:36A-2.4 (10A:35-2.4) when . . . the Department of Corrections staff determines that such restrictions are necessary to protect the resident, other residents, staff, general public, or property, or to ensure the safe, secure and orderly operation of the facility, or for other good cause:

. . . .

(2) The right to be free from unnecessary physical restraint; except for those situations where a resident has caused substantial property damage, has attempted or shown through threatening gestures or behaviors a substantial or imminent threat to harm self or others, or when other good cause exists indicating that less restrictive means of restraint are not feasible as determined by the Department of Corrections. In such an emergent situation, a resident may be physically restrained or placed in TCC or MAP status as defined in this chapter . . . .

Finally, the State argues that the use of restraints was an administrative decision within the discretion of the Department of Corrections.

The State correctly argues that the SVPA was specifically exempted from the Patient's Bill of Rights:

Notwithstanding the provisions of [The Patient's Bill of Rights] or any other law to the contrary, the rights and rules of conduct applicable to a person subject to involuntary commitment as a sexually violent predator pursuant to [the SVPA] shall be established by regulation promulgated jointly by the Commissioner of Human Services and the Commissioner of Corrections, in consultation with the Attorney General. The regulations promulgated under this subsection shall take into consideration the rights of patients as set forth in [The Patient's Bill of Rights], but shall specifically address the differing needs and specific characteristics of, and treatment protocols related to, sexually violent predators. In developing these regulations, the commissioners shall give due regard to security concerns and safety of the residents, treatment staff, custodial personnel and others in and about the facility.

[N.J.S.A. 30:4-27.34d.]

The proper focus is on administrative regulation.

N.J.A.C. 10:36A-2.3(a) grants substantial deference to the Department of Corrections to set restrictions necessary to protect the safety of both patients and non-patients and to use physical restraints in those situations where "other good cause exists indicating that less restrictive means of restraint are not feasible[.]" We will affirm an agency's decision if "'any fair argument in support of the course [taken by the agency] or any reasonable ground for difference of opinion among intelligent and conscientious officials'" exists. Rosen by Rosen v. New Jersey Div. of Developmental Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992) (quoting Flanagan v. Civil Service Dept., 29 N.J. 1, 12 (1959)), certif. denied, 133 N.J. 440 (1993). We will not substitute our judgment for that of the administrative agency and will intervene only where a decision was arbitrary or capricious. Ibid. (citations omitted).

We find no basis to conclude that the Department of Correction's initial decision to physically restrain appellant was arbitrary or capricious. By definition, appellant was a violent sex offender who was in the early stages of his treatment. For the safety of Judge Freedman and others in the courtroom, placing physical restraints on appellant was eminently reasonable. While other feasible alternatives may have been available, we are acutely aware of the "volatile environment" of the hearing and will defer absent a demonstration of abuse of the discretion residing in the agency. See Sandin v. Connor, 515 U.S. 472, 482, 115 S. Ct. 2293, 2299, 132 L. Ed. 2d 418, 429 (1995) (discussing the day-to-day management of prisons).

This determination, however, does not end our analysis. Although not a criminal proceeding, "the SVPA has been called 'almost pseudo-criminal in nature' because of 'its very real threat of lengthy incarceration.'" In re Commitment of J.M.B., 197 N.J. 563, 599 (2009) (quoting In re the Civil Commitment of E.S.T., 371 N.J. Super. 562, 575 n. 5 (App. Div. 2004)), cert. denied, ___ U.S. ___, 78 U.S.L.W. 3252 (2009); State v. Bellamy, 178 N.J. 127, 139 (2003) (observing that the SVPA commitment is "theoretically without end"). The quasi-criminal nature of the SVPA commitment proceeding justifies an analysis of the New Jersey courts' treatment of the use of physical restraints in criminal cases.

In State v. Mance, supra, a case involving criminal defendants appearing at trial in shackles, we opined that:

The judiciary has long recognized a defendant's freedom from restraints as an important aspect of a fair trial. However, there are circumstances under which a trial judge may exercise discretion to order restraints. Restraints may be necessary when a defendant exhibits violent conduct at the time of trial or threatens escape. Moreover, there are other circumstances under which the judge may exercise discretion and order restraints. For instance, a defendant's character, reputation, or criminal record may indicate a need for physical restraints.

[300 N.J. Super. at 50-51 (citations omitted).]

The judge must place on the record his rationale for allowing the use of restraints in this specific case. Artwell, supra, 177 N.J. at 537. His reasoning should be particularized to the defendant or witness at issue. Ibid. ("[T]he trial court should 'hold a hearing, however informal, and state on the record out of the jury's presence [its] reasons for shackling the [witness], whether they are based on evidence from trial, information obtained from criminal records, or statements made by law enforcement officers.'") (citation omitted).

Recently, the New Jersey Supreme Court reaffirmed the Artwell analysis, finding that:

the core question remains: is the witness a threat to courtroom security? That inquiry requires the type of "however informal" hearing Artwell commands, and the answer resulting from that hearing . . . governs whether the witness is to testify under restraints.

That said, we underscore that a full-blown adversary hearing is not required whenever a trial court is confronted with the question of whether a witness is to testify in restraints. Artwell envisions, and we reaffirm, that a straightforward, candid colloquy among the court, counsel and security staff should suffice to provide an informed basis on which the trial court can exercise its discretion.

Our reasoning starts from the unquestioned proposition that, absent proper reasons, witnesses in criminal cases presumptively should be allowed to testify without restraints. If, from whatever source, a request for the use of restraints is made, we hold that . . . trial courts have an independent obligation to gauge whether a witness is a security risk sufficient to justify the use of restraints. We further hold that, in order to exercise that discretion properly, trial courts must inquire as to the bases for the proposal and must be satisfied that, for security concerns and in the proper exercise of judicial discretion, some level of restraints is appropriate. We also hold that such inquiry and conclusions must be spread on the record, to allow meaningful appellate review.

[Kuchera, supra, 198 N.J. at 496-97 (emphasis added).]

Here, Judge Freedman set forth his reasoning for allowing the use of shackles in appellant's particular circumstances, concluding that:

The Department of Corrections make . . . the security arrangements here as directed by Statute since this courtroom is contained within the Special Treatment Unit, which is the designated facility for the housing, care and treatment of sexually violent predators, so-called.

The security arrangements that they have include an officer with a gun. It's my understanding that the leg cuffs are for the purpose of preventing a person from rushing the - - the officer with a gun and - - and obtaining possession of the gun.

It seems to me an imminently reasonable precaution. And I'm certainly not going to interfere with the - - with the requirements of the Department of Corrections in that regard since the fact that he has leg cuffs on obviously has no effect on me at all in terms of the merits of this case. So your request to have them removed is denied.

We note that this was a proceeding that was conducted within a corrections facility, and only appellant's legs were shackled. Most critically, this matter was heard by a judge only, and while that does not diminish the seriousness or merits of appellant's argument, it eliminates an underlying policy concern of the Court that shackling would influence the trier of fact.

While we are satisfied that the reasons for shackling were sound here, we urge a fuller exploration of factors relevant to a Department of Corrections' initial decision to shackle or a judge's decision on review. Even if we were to conclude that the judge failed to make the requisite findings to support the shackling here, we conclude that such error was harmless.

An error will be held "harmless" unless there is a reasonable doubt that the error "denied a fair trial and a fair decision on the merits[.]" State v. Macon, 57 N.J. 325, 338 (1971). This remains true even when the error is of a constitutional dimension. Ibid.; State v. Slobodian, 57 N.J. 18, 23 (1970). Here, no jury or other trier of fact was influenced by the asserted error, nor did the existence of physical restraints on appellant have a perceivable impact on the outcome of the proceeding in the face of substantial evidence of appellant's sexually violent past and presently dangerous condition. There was no error here.

III.

We now address appellant's claim that the judge erred by admitting hearsay included in various reports into evidence.

At the final hearing of 2002, several exhibits were marked into evidence, including adult pre-sentence reports, a pre-sentence evaluation for the Adult Diagnostic and Treatment Center (ADTC) and psychological evaluations prepared by the Department of Corrections. Judge Freedman admitted the pre-sentence and ADTC reports into evidence because they were relied on by the sentencing judge and testifying experts, were business records of the Department of Corrections and the judge wanted to make use of them to "better evaluate the expert opinions." The court also admitted the psychological evaluations as business records and documents relied on by the experts.

Appellant argues that several of the exhibits marked into evidence "contained excessive amounts of hearsay." He claims that the court accepted the hearsay evidence as substantive proof upon which it based its decision. He asserts that the Confrontation Clause analysis of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), applies to civil commitment proceedings under the SVPA. Appellant argues that "[i]t is the very 'pseudo-criminal' nature of these proceedings that require the experts and, in turn, the court to have before them testimony from those who witnessed the alleged conduct of the respondent, and not rely on matters related in police, presentence, or prior forensic reports." Appellant claims that the 2002 and 2003 hearings passed the "tipping point" of acceptable use of hearsay when "the State's evaluators, and in turn the hearing court, accept[ed] the unproved allegations in a presentence report as the foundation for commitment . . . ."

Appellant next claims that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), should be extended to SVPA proceedings, as "the reliance on hear-say [sic] permits long-term civil commitment to be based on allegations of criminal conduct that were never admitted by the respondent or found by a jury impermissibly circumvents the respondent's Sixth Amendment right to have those charges submitted to a jury." He notes that since the State did not offer transcripts of the his plea agreements into evidence at the trial level, the record was bare of any admissions, and the experts "relied solely on the original allegations, many of which were, most likely, never admitted or otherwise established at the time of the plea." Finally, he states that his "right to have allegations of criminal misconduct decided by a jury will be rendered meaningless unless that right is given effect in the SVPA case[,]" and appellant requests a remand.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is generally inadmissible. N.J.R.E. 802.

Several exceptions exist to the ban on the admission of hearsay evidence. N.J.R.E. 803. Generally, a trial judge in an SVPA hearing may consider hearsay in order to evaluate the credibility of expert testimony, if the expert based his opinion on such evidence and it is "of a type reasonably relied upon by experts in the particular field[.]" N.J.R.E. 703; In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612-13 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Presentence reports used by testifying experts in an SVPA hearing are admissible since these documents are reasonably relied upon by experts in the field. J.M.B., supra, 197 N.J. at 597 n.9; J.H.M., supra, 367 N.J. Super. at 612-13. Independent evidence need not be presented to establish the truth of hearsay statements utilized by an expert in his or her testimony. State v. Burris, 298 N.J. Super. 505, 511 (App. Div.), certif. denied, 152 N.J. 187 (1997).

On review, a trial court's evidentiary rulings are entitled to deference and will only be overturned on a showing of abuse of discretion. State v. Brown, 170 N.J. 138, 147 (2001). We will affirm the trial court's decision unless it was "'so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

The use of hearsay evidence at the trial level was appropriate. The doctors here indicated that the evidence they utilized was of the type that experts in the field ordinarily rely upon in reaching their diagnosis. As noted, the Court has determined that presentence reports relied upon by testifying experts in an SVPA commitment hearing are admissible since these documents are "the type of evidence reasonably relied on by psychiatrists in formulating an opinion as to an individual's mental condition." J.M.B., supra, 197 N.J. at 597 n.9 (citations omitted). Although, at trial, appellant's attorney argued that live witness testimony was necessary, independent evidence is not needed to establish the truth of hearsay statements relied upon by an expert in his or her testimony. Burris, supra, 298 N.J. Super. at 511. As Judge Freedman recognized, such a regime would prove unworkable:

The Court: Well, where does it say that they have to prove [F.D.'s past crimes]? You mean they have to go out and find these victims? Bring them in here and have them testify? Is that your position?

Counsel: Absolutely, Your Honor.

. . . .

The Court: Well, I don't know of any authority that says they have to do it here. It seems to me it would be an impossible burden to go finding witnesses at this time.

As for appellant's argument that Crawford should be extended to SVPA proceedings, that approach has already been explicitly rejected in In re the Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004), where we observed that:

We have found no case in any jurisdiction that has extended Crawford to a civil commitment proceeding where the burden of proof is less than beyond a reasonable doubt. The Supreme Judicial Court of Massachusetts has specifically declined to do so. [In Commonwealth v. Given, 441 Mass. 741, 747 n.9 (2009),] [t]he court noted that

"[u]nlike the confrontation clause, due process demands that evidence be reliable in substance not that its reliability be evaluated in "a particular manner." That the focus on reliability may not accommodate a simple, predictable, bright-line rule does not alter the fact that reliability, not cross-examination, is the "due process touchstone."

[Ibid. (citations omitted).]

Although we noted that "there is a tipping point where due process is violated by the use of hearsay[,]" we viewed the problem as occurring when there was a "'greatly reduced, if not entirely absent, opportunity for effective cross-examination, a right specifically guaranteed by the SVPA. . . .'" Id. at 58 (quoting E.S.T., supra, 371 N.J. Super. at 573).

In G.G.N., "the State presented two witnesses, neither of whom treated G.G.N. over the fourteen years he was in ADTC. The doctors relied on numerous reports from ADTC and a short interview with G.G.N." Ibid. Here, the State produced multiple experts, three of whom had personally met with appellant, and they were vigorously cross-examined by appellant's attorney. We reject the Crawford argument and find no similarity with G.G.N to warrant relief.

Appellant's reliance on Blakely v. Washington is likewise misplaced. Appellant claims that Blakely limits the use of hearsay evidence in SVPA proceedings when such allegations have not been decided by a jury in a criminal trial. He claims that "[t]he matter should be remanded for a hearing where the expert's testimony and the court's opinion are based to [sic] those facts which have been admitted by F.D. or in the alternative established beyond a reasonable doubt before a jury."

Although SVPA civil commitment hearings are quasi-criminal in nature, Blakely does not apply. We have already determined that there is no right to a jury trial in SVPA hearings. J.H.M., supra, 367 N.J. Super. at 606-07. Additionally, both our courts and the United States Supreme Court have found the "clear and convincing" standard to be an appropriate standard in civil commitment proceedings. Id. at 607 (quoting Addington v. Texas, 441 U.S. 418, 432-33, 99 S. Ct. 1804, 1812-13, 60 L. Ed. 2d 323, 335 (1979)). Appellant's argument is without merit. "The reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the State cannot meet and thereby erect an unreasonable barrier to needed medical treatment." Addington, supra, 441 U.S. at 432, 99 S. Ct. at 1812-1813, 60 L. Ed. 2d at 335. Our Supreme Court also discredited the use of the reasonable doubt standard in relation to SVPA proceedings:

Our dissenting colleague suggests that the SVPA requires a finding under N.J.S.A. 30:4-27.26(b) beyond a reasonable doubt. We disagree. That conclusion upends the paradigm established by the Legislature for SVPA decisions. . . . Once a conviction occurs, the beyond a reasonable doubt standard drops out of the case. It is then that the SVPA itself becomes operative.

[J.M.B., supra, 197 N.J. at 578.]

While appellant's arguments may have surface allure, we have rejected similar claims and found "that persons subject to commitment under the SVPA are [not] entitled to more constitutional protections beyond those the statute affords." J.H.M., supra, 367 N.J. Super. at 606. The protections afforded criminal defendants in Crawford and Blakely are not extended to SVPA proceedings. See J.M.B., supra, 197 N.J. at 577 (noting that "the SVPA is not part of the criminal code and it has been clearly determined that civil commitment under the SVPA is not punitive"). The reliance by the experts in this case on hearsay evidence was proper and resulted in a constitutionally sound proceeding. We find no error.

Finally, we reject appellant's claims that, during the final commitment hearing of 2002, the court improperly admitted into evidence an ADTC evaluation and two clinical evaluations prepared by non-testifying experts who never treated the appellant. The judge admitted this evidence under N.J.R.E. 703, as the type of evidence relied upon by experts in forming their opinions, and under N.J.R.E. 803(c)(b), as a business record.

At the 2002 hearing, in response to appellant's attorney's objection to the ADTC report prepared by Dr. Merrill Mane, a non-testifying expert, Judge Freedman stated:

This is a business record of the Department of Corrections, number one. Prepared in the ordinary course.

I would point out that the various respondents represented by your office have offered this exact document into evidence on numerous occasions. Without objection from the State. So apparently, at least . . . on some occasions, it's deemed by lawyers in your office that this is admissible, and I guess on other occasions it's deemed that it's not admissible. I don't really understand the difference.

I'll allow it for the same reasons. It's a report that's relied on and we can better evaluate the expert opinions.

Judge Freedman similarly admitted the reports of non-testifying experts Dr. Ken Vaughn and Dr. Robert Lathey as business records and as documents relied on by testifying experts in rendering their opinions.

In E.S.T., we recognized the difficulties inherent in allowing admission of the reports of non-testifying experts. We said:

As we view it, the infirmity lies in the greatly reduced, if not entirely absent, opportunity for effective cross-examination, a right specifically guaranteed by the SVPA . . . when the experts produced in court and available for cross-examination rely heavily upon the opinions of experts who are not produced. While the experts here did not rely on sources of unknown reliability . . . we [are concerned]: that the trier of fact, even an experienced judge, may not be able to fairly evaluate the basis of the in-court opinions that rely upon out-of-court opinions effectively shielded not just from meaningful cross-examination, but from any cross-examination.

. . . .

It does not comport with fundamental fairness to have the opinions of the non-testifying experts bootstrapped into evidence through the testimony of the testifying experts without an opportunity for cross-examination of the underlying opinions. . . . While the witnesses at E.S.T.'s hearing both "examined" him within the appropriate time frame, neither one had treated E.S.T. Indeed, it does not appear that E.S.T. received any treatment in the three months between his initial commitment and the final hearing. Thus, the testifying experts were not even in a position to review treatment records . . . .

[E.S.T., supra, 371 N.J. Super. at 573-75.]

E.S.T. and this case are readily distinguishable. Here, the State produced multiple experts, three of whom had personally met with appellant, with one having met appellant on three separate occasions. Unlike E.S.T., where the committee received no treatment in the three months leading to his final commitment hearing, and "[t]hus, the testifying experts were not even in a position to review treatment records," here, the experts had examined appellant, testified at the 2003 review hearing, and were able to discuss and be cross-examined regarding appellant's treatment progress. We see no merit to this claim.

 
Affirmed.

Some of the factors that may be considered include,

(1) the seriousness of the present charge, (2) the person's character, (3) the person's past record, (4) past escapes by the person, (5) attempted escapes by the person, (6) evidence the person is planning an escape, (7) threats of harm to others, (8) threats to cause disturbance, (9) evidence the person is bent upon self-destruction, (10) risk of mob violence, (11) risk of attempted revenge by victim's family, [and] (12) other offenders still at large[.] . . .

[Artwell, supra, 177 N.J. at 538 (citation omitted).]

In Blakely, the Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and found that "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Blakely, supra, 542 U.S. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412 (quoting Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2363, 147 L. Ed. 2d at 455).

(continued)

(continued)

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A-4637-02T2

RECORD IMPOUNDED

December 11, 2009