IN THE MATTER OF THE CIVIL COMMITMENT OF S.J.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6564-06T26564-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF S.J., SVP-427-06.

________________________________________________________________

 

Submitted April 20, 2009 - Decided

Before Judges Lisa, Reisner and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-427-06.

Ronald K. Chen, Public Advocate, attorney for appellant (Stephen M. Latimer, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, S.J., appeals from Judge Perretti's August 15, 2007 order committing him to a secure facility as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. This order was entered after an initial commitment hearing. Appellant does not contend on appeal that the State failed to prove by clear and convincing evidence that he is subject to commitment under the SVPA. He argues that he was denied the effective assistance of counsel. He further argues that the judge erred in refusing to admit in evidence a report allegedly demonstrating unconstitutional conditions of confinement and, correspondingly, the judge erred by refusing to consider his argument that the place of confinement, the Special Treatment Unit (STU), is punitive in fact, as a result of which the SVPA is an ex post facto law. We reject these arguments and affirm.

I

Although appellant does not dispute that the evidence presented at the hearing was sufficient to support Judge Perretti's finding that he is subject to commitment under the SVPA, for the sake of completeness we set forth a summary of that evidence and the facts established by it, and the judge's findings, before addressing the appeal arguments.

A.

Appellant is now fifty years old. He was born on December 19, 1958, in New York City. He began his sexually offending behavior in early adolescence. During a two to three month period in 1974 in New York, he accosted five women who were strangers to him. He grabbed the breasts of three of them, forced a fourth victim to undress, and touched the breasts and vagina of the fifth victim after forcing her to undress. He was arrested on April 11, 1974 and charged with multiple sexual offenses. On August 20, 1974, he raped at knifepoint a woman he encountered in a drug store in Ithaca, New York.

On August 23, 1974, appellant was admitted to the New Jersey State Diagnostic Center at Menlo Park for "psychosexual problems." In addition to the rape in Ithaca, appellant reported at that facility involvement "in three such incidents and many other sex-related delinquencies, for which either he was not apprehended or they went unnoticed." For these various charges, appellant was committed to Goshen School for Boys in Goshen, New York for eighteen months during 1975 and 1976.

On April 22, 1977, appellant committed his first adult sexual offense. He went to the Morris County Mall with the "thought of raping someone." He stole a kitchen knife and approached an eighteen-year-old woman in the parking lot who agreed to give him a ride. At knifepoint, he raped her in the car. He attempted a similar act on May 7, 1977. He stole a kitchen knife from a hardware store, got a ride from a female, told her to stop, and brandished the knife. The female physically resisted, and appellant ran away. According to appellant, "it was just like the Hanover rape except I didn't do anything."

Appellant was arrested for the May 7, 1977 incident and charged with assault with a deadly weapon, possession of a deadly weapon, and assault with attempt to rape. His fingerprints matched those obtained during the investigation of the April 22 incident, and appellant was charged with rape, rape while armed, assault with intent to rape, and assault with an offensive weapon.

On July 28, 1977, appellant pled guilty to the April 22 rape. Pursuant to his plea agreement, the remaining charges from that incident were dismissed. On August 26, 1977, appellant pled guilty to assault with an offensive weapon for the May 7 incident. Pursuant to the plea agreement, the remaining charges from that incident were dismissed.

In preparation for sentencing for these offenses, appellant was evaluated by an examiner from the Adult Diagnostic and Treatment Center (ADTC), who determined that appellant's sexual conduct was repetitive and compulsive and fell within the purview of the New Jersey Sex Offender Act. Accordingly, when defendant was sentenced on October 28, 1977 for these offenses, it was ordered that he serve his sentence at the ADTC. Defendant was paroled on December 22, 1987.

On April 2, 1989, after hearing an answering machine message from his former roommates, J.F. (a female) and Mark, regarding money appellant allegedly owed them, appellant went to their house under the influence of cocaine and alcohol. According to appellant, he entered the residence through an unlocked backdoor, kicked open J.F.'s bedroom door, and told her to sit down and shut up, at which point Mark entered. According to J.F., appellant entered her bedroom and closed and locked the door behind him. According to the presentence report later prepared with respect to this incident, J.F. "stated that he pointed the knife at her as she was lying on the bed and that he stated several times, 'Get on the bed, [J.], get on the bed.' She stated that she told him that he could have whatever he wanted, but that he kept stating that she should get on the bed." J.F. further reported that Mark convinced appellant to leave the room.

Appellant was arrested and charged for this incident with possession of a weapon for an unlawful purpose, burglary, aggravated assault, and attempted aggravated sexual assault. On August 29, 1989, he pled guilty to second-degree burglary, and the other counts were dismissed. The presentence report revealed that appellant reported a severe drug dependency, with crack, heroin and alcohol use, and quoted his April 30, 1989 psychiatric evaluation which suggested that his sexual pathology existed in a dormant state, but drug and alcohol use could activate it. On October 3, 1989, appellant was sentenced to five years imprisonment for this offense. He was paroled on December 16, 1991, and discharged from parole on November 7, 1992.

Between 1993 and 2000, appellant incurred multiple arrests and was the subject of multiple municipal court complaints. His driver's license was suspended. He was placed on probation for separate instances of marijuana possession.

In 1994, appellant married M.J. They separated while M.J. was pregnant in 1995, and they eventually divorced. Their daughter was born on October 9, 1995. Appellant admitted committing acts of domestic violence against his wife and violating a temporary restraining order she had against him. Although it is unclear whether the following offenses related to appellant's conduct toward his wife, he was found guilty in 1996 on two occasions of making a communication in an annoying or alarming manner.

On March 26, 2001, appellant was sentenced to five years probation for third-degree burglary. On September 30, 2001, he committed aggravated assault on a police officer.

The index offense occurred on December 4, 2001. These were the circumstances leading up to it. On December 1, 2001, a seventeen-year-old girl, A.B., purchased a kitten from the pet store where appellant worked. Appellant called her several times over the next few days, asking her for a date. A.B. refused and told appellant not to call her. On December 4, 2001, appellant called her again, demanding she go on a date with him. She refused. Later that day, A.B. saw appellant outside her home. She called the police. The police arrived and searched appellant. They found a buck knife strapped to his chest. They searched his backpack and found "two pairs of handcuffs, a condom, a vibrator, a black ski mask, a VHS cassette, a 3-foot rope, a roll of gray duct tape and a Beanie Baby stuffed bear." Appellant also had in his possession 4.45 grams of crack cocaine, a hypodermic needle and a glass crack pipe.

Appellant contended that he encountered A.B. while she performed as a stripper or dancer prior to her purchase of the kitten. He said she gave him her number and the two had called each other multiple times, engaging in explicit sexual conversations. Appellant claimed that he had the items in his backpack for use in a robbery and that he always carried a knife for self-protection. Finally, he said he intended to have consensual sex with A.B., but not to rape her.

Appellant was charged with fourth-degree stalking and third-degree possession of a weapon for an unlawful purpose. He was also charged with possession of a controlled dangerous substance and disorderly persons offenses. When interviewed, appellant said he had been under the influence of alcohol and cocaine, and his relapse caused him to commit the offense.

On February 11, 2002, appellant pled guilty to the stalking and weapons offenses. He was sentenced on April 17, 2002 for those offenses and the assault on a police officer. He received an aggregate term of seven years imprisonment.

As appellant's release date approached, the State filed a petition for civil commitment under the SVPA on February 17, 2006. The petition was supported by appropriate psychiatrists' certifications and appellant was committed to the STU. Appellant waived his right to a prompt initial commitment hearing. Over the next year-and-a-half, appellant underwent various mental health evaluations, some by the State's experts, and some by his own.

B.

Trial was conducted between August 7 and August 15, 2007. Appellant moved to dismiss the petition for commitment on the ground that the SVPA was unconstitutional. He argued that the quality of care at the STU was substandard and that the sex offender treatment was inadequate. Accordingly, he contended confinement there constituted additional punishment for his crimes, not civil commitment, and therefore violated the ex post facto clause. In support of this argument, he proffered a report dated March 20, 2005, by Dr. Robert Prentky, a psychologist. The report had been prepared in connection with federal litigation regarding the STU. It had nothing to do with appellant or his STU commitment. Indeed, it was written prior to appellant's commitment to the STU.

Judge Perretti concluded that the report was irrelevant. She reasoned that the sole issue in the hearing she was conducting was to determine whether appellant should be committed to the STU as a sexually violent predator. She refused to allow the report in evidence, although it was marked for identification and is part of the appellate record. We note that appellant did not intend to call Dr. Prentky as a witness. The judge declined to consider appellant's ex post facto argument.

The State presented the testimony of Dr. Dean De Crisce, a psychiatrist, and Dr. Natalie Barone, a psychologist. Based upon his own interview of appellant and relying upon a statement by appellant to another evaluator, Dr. De Crisce concluded that appellant's stalking offense was a sexual offense. Dr. De Crisce discussed appellant's extensive history of criminal sexual behavior. He testified to appellant's acknowledgement of having rape fantasies when he searched out women to be victims. Dr. De Crisce also found the assault on appellant's former roommate, J.F., to be a sexually violent offense.

Dr. De Crisce diagnosed appellant with paraphilia, NOS, with elements of frotteurism, adjustment disorder with anxiety, and antisocial personality disorder. In his opinion, the treatment appellant had previously received at the ADTC and in various substance abuse programs was not sufficient to enable him to control his behavior. Further, he was of the view that appellant's persistent use of alcohol and illegal drugs increased his risk of sexual recidivism because they serve as a disinhibitor. Dr. DeCrisce opined that appellant currently had difficulty controlling his sexually offending behavior and that if released, he would be a high risk to sexually reoffend.

Dr. Barone reached similar conclusions. She described in detail appellant's long history of criminal sexual behavior. She too found the 1989 offense against J.F. and the index offense to be sexual in nature. In the course of her testimony, she referred to the premeditated nature of many of appellant's sex offenses. She characterized appellant as a pathological liar with a grandiose sense of self-worth, narcissistic, and psychopathic.

In her testimony, Dr. Barone referred to the description given by J.F. in the 1989 incident, when appellant allegedly ordered her to get down on the bed. She also referred to a series of harassing communications appellant made to his ex-wife, which resulted in several restraining orders against appellant.

Dr. Barone diagnosed appellant with paraphilia, NOS, non-consent, polysubstance abuse and antisocial personality disorder with psychopathic features. In her view, the combination of psychopathy and sexual deviancy is the "most robust predictor of sexual recidivism." She found appellant to present a high risk of sexual reoffense if not confined.

Appellant presented the expert testimony of Dr. Daniel Greenfield, a psychiatrist, Dr. Gregory Gambone, a psychologist, and Beth Mitchell, a licensed clinical social worker. Dr. Greenfield diagnosed appellant with polysubstance abuse in institutional remission. He found a number of factors mitigating against the risk of sexual reoffense, including appellant's age and his prior sex offender treatment at Avenel, as well as appellant's involvement in Alcoholics Anonymous. Dr. Greenfield acknowledged that appellant's contention that he had no intention of raping A.B. if she did not consensually have sex with him was inconsistent with the contents of appellant's backpack on that occasion and his possession of a knife. Dr. Greenfield nevertheless expressed the view that this stalking offense was not a sexual offense. Likewise, he was of the view that the burglary incident involving J.F. was not sexual in nature.

In his report, Dr. Greenfield suggested that appellant could be released from the STU without conditions. In his trial testimony, he modified that position. He urged placement of appellant under a less restrictive alternative than confinement at the STU, suggesting that furloughs and gradual, incremental steps would be appropriate.

Dr. Gambone described appellant's treatment at the STU, in which he had participated. He acknowledged that appellant had done well in treatment, but further opined that appellant needed more treatment.

Ms. Mitchell worked with appellant while he was incarcerated at Mid-State Correctional Facility. She continued therapy by telephone with appellant when he was transferred to the STU. Ms. Mitchell concluded that, if appellant abstained from alcohol and drug use, he would be a moderate risk for reoffending. She suggested a less restrictive environment than the STU, with consideration to be given to such techniques as electronic monitoring, random urine screens, and outpatient therapy. She did not urge unconditional discharge.

Appellant also presented other lay witnesses, who vouched for his character, promise of employment, participation in Alcoholics Anonymous, etc. Defendant testified at length in his own behalf. He described the circumstances of the 1989 burglary. He claimed he entered J.F.'s room and told her to "shut up, sit down, leave me alone, stop calling," before he left the room. He denied any sexual overtones to the incident. He repeated his version of the events regarding his initial meeting with A.B., claiming he met her at a topless bar, before she came into the store where he worked to buy a kitten and gave him her phone number. Appellant claimed he had "flirty" telephone conversations with A.B., including phone sex. He reiterated his position that the backpack items, including the rope, duct tape and mask, were to rob a drug dealer. He said that he and A.B. had discussed handcuffs. As far as contacts with his former wife, appellant claimed a therapist suggested that he contact her and talk to his daughter about his past and that Dr. Gambone agreed it was a good idea.

Appellant's attorney offered in evidence a report designated a "draft" issued on May 11, 2007 by Dr. Timothy P. Foley, a psychologist. This was the result of a psychological evaluation of appellant prepared at the request of his attorney. Appellant's attorney declined to call Dr. Foley as a witness. There is some discrepancy in the record and the arguments of counsel as to the availability of Dr. Foley. It appears to us that Dr. Foley was present in court on one of the hearing days and Judge Perretti was amenable to taking his testimony out of turn. On appeal, defendant criticizes his trial attorney for not seeking an adjournment to enable him to schedule Dr. Foley for testimony. Our conclusion is that trial counsel deliberately declined to call Dr. Foley as a witness, instead relying upon his report. The State had no objection to stipulating the report into evidence, with cross-examination being waived.

In the seven-paged single-spaced report, Dr. Foley listed the many documents he reviewed and rendered a comprehensive description of his evaluation. He concluded:

[S.J.] can be diagnosed with Antisocial Personality Disorder and Polysubstance Dependence. The DSM-IV does not provide a diagnosis for rape. [S.J.] admits persistent fantasies of non-consensual sexual arousal. An actuarial risk appraisal categorizes him with offenders who recidivate with "high" frequency. These estimates are mitigated by his treatment progress and advancing age. He appears to fall below the "highly likely" threshold necessary for continued civil commitment.

[S.J.] appears appropriate for civil commitment as a sexually violent predator. In all likelihood, he would spen[d] years receiving sex offender treatment and then be referred to a substance abuse facility. A primary treatment choice is substance abuse rehabilitation and a secondary choice is sex offender specific treatment.

In rendering her decision, Judge Perretti credited the testimony of the State's experts, Drs. De Crisce and Barone. She found the testimony of appellant's psychiatric and psychological experts, Dr. Greenfield and Dr. Gambone, less persuasive. She rejected Ms. Mitchell's testimony with regard to appellant's likelihood of recidivating, because Ms. Mitchell is not an expert in risk assessment.

The judge summarized the circumstances of appellant's 2001 offenses and his version of the events of that evening. She found that appellant went to A.B.'s house intending to "rape her if she did not comply with his demands." The judge summarized the circumstances of appellant's 1989 burglary conviction, finding "clear and convincing evidence of [S.J.]'s intention to commit a sexual assault at knifepoint."

With respect to Dr. Foley's report, the judge noted the inconsistent statements in the report. She said:

He then states, quote, "He appears to fall below the highly likely threshold necessary for continued civil commitment. [S.J.] appears appropriate for civil commitment as a sexually violent predator," close quote.

This Court is unable to understand which of these two completely inconsistent statements by Dr. Foley, one directly after the other, represents this witness's opinion. Dr. Foley continues, "In all likelihood, he would spend years receiving sex offender treatment and then be referred to a substance abuse facility. A primary treatment choice is substance abuse rehabilitation and a secondary choice is sex offender specific treatment," close quote.

It appears from a complete reading of his report that this expert concedes that [S.J.] is appropriate for civil commitment as a sexually violent predator.

The judge noted Dr. Gambone's conclusion that appellant needed to continue in treatment. With respect to Dr. Greenfield, she noted that he failed to recommend appellant's release but instead suggested a less restrictive setting or set of conditions.

Judge Perretti, after thoroughly reviewing all of the evidence, making her credibility determinations, and analyzing the facts she found in relation to the controlling legal principles, concluded that appellant was a sexually violent predator in need of commitment under the SVPA. She stated:

The evidence presented by the State was clear and convincing. The Court is clearly convinced that the respondent is a sexually violent predator. He has been convicted of a number of enumerated sexually violent offenses. In addition, he has been convicted of two offenses which have been specifically found by the Court to be of such circumstances that they must be considered sex offenses of a violent nature to be included within the SVPA Act.

The respondent suffers from abnormal mental conditions and personality disorders, particularly paraphilia, substance abuse and dependence and antisocial personality disorder which combine to predispose him to commit sexually violent acts. He has serious difficulty controlling his sexually violent behavior as he has established by his repeated re-offending after treatment of every sort. The respondent's emotional, cognitive and volitional functioning have been so influenced and affected by his diagnosed conditions that he is predisposed to re-offend.

This is a particularly dangerous sexual predator who has been diagnosed as a psychopath. His six hours approximately of testimony convinced this Court that this is a deceptive psychopath who makes stories up as he goes along, has an answer for everything and is internally inconsistent in the course of his own recitations.

C.

Under the SVPA, an involuntary civil commitment can follow an offender's service of a sentence or other criminal disposition, when he or she "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 mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder "must affect an individual's ability to control his or her sexually harmful conduct." In re Commitment of W.Z., 173 N.J. 109, 127 (2002). A finding of a total lack of control is not necessary. Id. at 126-27. A showing of an impaired ability to control sexually dangerous behavior is sufficient to prove a mental abnormality. Id. at 127.

"To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts. . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." Id. at 132; see also N.J.S.A. 30:4-27.32; In re Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The scope of appellate review of judgments of civil commitment is exceedingly narrow. In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court should give the "utmost deference" to the reviewing judge's determination. In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)). We will only intervene when there has been a clear abuse of discretion. Ibid. "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court's findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

As we stated at the outset of this opinion, appellant does not dispute that the evidence presented at the hearing was sufficient to support the judge's findings. Nevertheless, we express our view, based upon our review of the record, that we independently conclude that Judge Perretti's findings are amply supported by the evidence and that she correctly applied the applicable legal principles as we have described them in reaching her ultimate determination.

II

We now address the arguments presented on appeal. Appellant first contends that he was denied the effective assistance of counsel. He points to three instances of alleged deficient conduct: (1) Counsel was ineffective for offering in evidence the draft report of Dr. Foley and waiving his live testimony; (2) Counsel failed to cross-examine Dr. Barone using the tape of her interview with appellant, which, according to appellant, would have demonstrated an important discrepancy in her testimony and undermined her credibility; and (3) Counsel was deficient for losing a copy of an order of the Family Part denying his ex-wife's application for a restraining order, which, according to appellant, would have undermined the veracity of entries in STU progress notes.

An individual subject to involuntary commitment under the SVPA has the right to counsel at the commitment hearing. N.J.S.A. 30:4-27.29c. That right requires the effective assistance of counsel. In re Commitment of A.X.D., 370 N.J. Super. 198, 203 (App. Div. 2004). To establish a claim of ineffective assistance of counsel, one must satisfy both prongs of the test laid down in Strickland v. Washington, 466 U.S. 668, 690-94, 104 S. Ct. 2052, 2066-68, 80 L. Ed. 2d 674, 695-98 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).

The first prong requires a showing that counsel's performance was deficient in that counsel committed error so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Fritz, supra, 105 N.J. at 52. Courts grant a high degree of deference in evaluating the performance of counsel and employ a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. 2065, 80 L. Ed. 2d at 694). The person asserting ineffective assistance must overcome the presumption that counsel engaged in "the exercise of reasonable professional judgment." State v. Oglesby, 122 N.J. 522, 538 (1991) (Handler, J., concurring) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

Under the second prong, it must be shown that the deficient performance prejudiced the party claiming ineffective assistance. Fritz, supra, 105 N.J. at 52. This requires proof of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. 2068, 80 L. Ed. 2d at 698).

A.

Appellant's first claim of ineffective assistance deals with Dr. Foley's report. Appellant argues that his counsel was deficient for entering the report in evidence without calling Dr. Foley to present live testimony in order to explain his apparently contradictory positions in a manner favorable to appellant. We first note that appellant has produced no certification or affidavit from Dr. Foley describing what he would have said had he been called to testify. Without that, we cannot assume that, if called as a witness, Dr. Foley would have provided favorable testimony. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). For these reasons, we cannot find deficient performance for failure to call Dr. Foley as a witness.

With respect to counsel's submission in evidence without live testimony of Dr. Foley's report, we could assume that this was a strategic move on counsel's part, in that the report contained some favorable information that might have had the tendency to undermine the State's proofs. For purposes of our analysis, however, we will not make that assumption. Instead, we assume counsel was deficient for entering the report in evidence because its contents included the comment that appellant "appears appropriate for civil commitment as a sexually violent predator."

In our view, the absence of the report in evidence would not have changed the outcome. Judge Perretti credited the expert opinions by Dr. De Crisce and Dr. Barone. Even Dr. Greenfield and Dr. Gambone, appellant's experts, provided some information and opinions that were damaging to appellant and did not provide persuasive evidence that appellant should not be committed. Therefore, even if the first prong was satisfied, the second prong was not. Accordingly, this conduct did not constitute ineffective assistance of counsel.

B.

Appellant's remaining two claims of ineffective assistance lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). These were insignificant matters.

Appellant has not produced a transcript of his tape-recorded interview by Dr. Barone. Thus, we cannot evaluate whether his contention about the specific manner in which she questioned him about his interaction with J.F. in the 1989 burglary was accurate. According to appellant, the audiotape would reveal that Dr. Barone accused him of shoving J.F. onto the bed, an allegation he maintains he denied. At trial, appellant's counsel asked Dr. Barone if she accused appellant of shoving J.F. onto the bed, and she denied doing so. Appellant asserts that the tape would show otherwise and provide valuable impeachment evidence to undermine Dr. Barone's testimony and opinion. In the overall scope of Dr. Barone's testimony and other evidence in the case regarding the burglary incident, this detail was minor, and, even if the tape revealed what appellant says it would reveal, it would have had no impact on the outcome.

The same holds true with respect to the alleged Family Part order denying a restraining order to appellant's ex-wife. Appellant contends that there was such an order and his counsel had it but lost it and therefore could not use it at trial. Appellant argues that this order would have contradicted the STU progress notes reporting that a woman claiming to be appellant's former wife contacted the STU on March 26, 2007 claiming appellant was contacting and harassing her by phone. Appellant argues that if the order was admitted, "the trustworthiness of the progress note would have been impeached. Ms[.] Mitchell's testimony would not have been discredited and Dr. Barone's testimony would have been given less weight."

Appellant argues that the judge relied on the progress note to find that Ms. Mitchell did not understand appellant's deceitful nature. However, the judge cited appellant's statement that he was advised to contact his former wife and explain his criminal history to his daughter, appellant's letters to his wife indicating his "longstanding intentions" to tell his daughter of his criminal history, and Ms. Mitchell's belief in appellant's "incredible" version of events regarding his presence at A.B.'s home with a "rape kit." The judge further disregarded Ms. Mitchell's opinion regarding appellant's risk of reoffense because she had no expertise in risk evaluation.

Therefore, contrary to appellant's assertion, the judge did not rely on the progress note in her determination that Ms. Mitchell was deceived by appellant. This, like the audiotape segment, was insignificant. If there was such a Family Part order (which appellant has not produced in support of his ineffective assistance claim), it would have had no effect on the outcome of this proceeding.

C.

Finally, we address appellant's argument that the judge erred in refusing to admit in evidence Dr. Prentky's report and consider his ex post facto argument. It is by now well settled that an SVPA commitment is civil and not penal in nature, as a result of which such a commitment does not constitute an ex post facto violation. J.H.M., supra, 367 N.J. Super. at 608. Appellant contends that with proof that the conditions of confinement are substandard and that the sex offender treatment is deficient, this issue could be reopened and a determination could be made that committees are indeed being further punished for their crimes when confined, under the guise of civil commitment.

Judge Perretti did not err in rejecting the proffer of Dr. Prentky's report for several reasons. First, appellant had no intention of calling Dr. Prentky as a witness. The report was prepared for consideration in unrelated federal litigation. It was prepared before appellant was committed to the STU. It had nothing to do with appellant's conditions during his commitment or the sex offender treatment provided to him. Therefore, even if the report were admissible by virtue of some exception to the hearsay rule, it did not provide competent evidence as to whether appellant was being further punished under the guise of civil commitment. Further, the purpose of this hearing was to determine whether the State could produce sufficient evidence to clearly and convincingly establish that appellant qualified as a sexually violent predator and was subject to commitment under the SVPA. Any broad attack on the constitutionality of the SVPA on the grounds suggested by appellant would not be appropriately considered in such a proceeding.

Affirmed.

When S.J. was four years old, his father placed him in the care of the headmaster of the Chartwell Manor School, in Mendham. At twelve, he returned to New York City to live with his father. After committing the juvenile offenses, he was returned to the care of the school's headmaster, who had him admitted to the New Jersey Diagnostic Center in 1974, before he was placed in the Goshen School for Boys in 1975.

(continued)

(continued)

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A-6564-06T2

RECORD IMPOUNDED

June 2, 2009