STATE OF NEW JERSEY v. STEPHEN JAFFE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1912-05T41912-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN JAFFE,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 9, 2006 - Decided December 4, 2006

Before Judges Lefelt, Parrillo, and

Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment Nos. 02-02-0072, 01-01-0017

and 01-10-0327.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Roger L.

Camacho, Designated Counsel, of

counsel and on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Nancy A. Hulett, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Stephen Jaffe is currently involuntarily committed under the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On this appeal, he challenges his current commitment by claiming that his constitutional and other rights were violated when the trial court vacated its determination converting defendant's prison sentence into probation, thereby keeping him incarcerated until the State civilly committed him under the SVPA. We conclude that defendant's appeal is moot.

On April 17, 2002, pursuant to a plea bargain, the trial judge sentenced defendant to an aggregate seven-year prison term for third-degree aggravated assault, third-degree possession of a knife for an unlawful purpose, fourth-degree stalking, and a violation of probation.

On August 15, 2005, the trial judge granted defendant's motion, made pursuant to R. 3:21-10(b)(1), for a change in custodial sentence, and imposed a four-year probationary sentence, conditioned on defendant's gainful employment and successful completion of an out-patient substance abuse program, to which he had already been admitted. Later that day, however, the prosecutor informed the judge that a representative of Mid-State Correctional Facility had called and advised the prosecutor that defendant may re-offend by committing a sex crime "if he lost his sobriety."

The next day, the judge vacated his order and indicated that he would call the Attorney General's Office to determine whether the office intended to petition for civil commitment. The judge continued the matter until August 19, 2005 and ordered defendant's counsel to be present. Defendant remained incarcerated in the Middlesex County Correctional Facility. On August 19, 2005, the trial judge rescheduled the matter for August 31, 2005, which was to be his last day in the Criminal Division before being transferred to the Civil Division. He explained to the parties that he had contacted the Deputy Attorney General in charge of the unit administering the SVPA, who had then asked that the judge continue the matter so the Attorney General's Office could evaluate the situation more closely.

On August 31, defendant appeared without counsel, who was on vacation. Because counsel was not present, defendant was not permitted to address the court. The prosecutor indicated that the State opposed a change of custody because the Attorney General's office indicated that "[t]here may be an application for a civil commitment. He certainly would fit the criteria. That will not occur now. That will be decided later on." Based on this information, which the judge indicated was communicated to him "informally yesterday or the day before," the judge denied defendant's motion. The judge indicated that he would reconsider his position should defendant's counsel move for reconsideration. The judge thereupon remanded defendant to Mid-State.

Upon counsel's return from vacation, he refused to move for reconsideration upon defendant's behalf. Consequently, defendant moved pro se for reconsideration. Without conducting any hearing, the court issued a written order denying defendant's reconsideration motion. Defendant tried unsuccessfully through various avenues, to obtain a hearing on his reconsideration application. Just before defendant's seven year sentence was completed, on March 28, 2006, upon the application of the Attorney General's Office, another judge civilly committed defendant under the SVPA.

On appeal, defendant argues that we should "vacate the order for temporary civil commitment" for various reasons. Defendant argues that the court decided on August 15, 2005 that he was not a danger to society. Therefore, collateral estoppel, equitable estoppel, and waiver precluded vacation of the court's order based upon speculative hearsay representations defendant was unable to confront in a meaningful hearing. Defendant further argues that the trial court's "post August 15, 2005 process violated [defendant's] federal and state constitutional due process rights to a meaningful hearing, to confront witnesses and evidence asserted against him, to suppress confidential evidence improperly presented; to counsel, and to the effective assistance of counsel."

We disagree with defendant's contention that the trial court was precluded from vacating its own order, and we reject the strained estoppel and waiver arguments. "[I]t is a well-entrenched legal concept that a court may vacate a judgment on its own motion." N.C. Hous. Assocs. v. Hightower-Cooper, 281 N.J. Super. 317, 322 (Law Div. 1995).

Although we could quarrel with some of the procedures utilized by the trial court in vacating its order and denying defendant's motion, we find that such an exercise would be fruitless. Defendant seeks to link his current civil commitment to the claimed defects which resulted in his continued incarceration rather than release upon probation. However, even if we agreed with defendant's various arguments concerning the court's decision to vacate its probation order, there is no effective relief that we could now grant, thereby rendering criticism of the process academic. Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976). Were we to reverse the trial court's vacation of the order placing defendant on probation, we would still have to recognize that he has served his maximum sentence and, therefore, could not initiate any probationary period.

In addition, defendant is not appealing from the underlying conviction. Bd. of Trs. v. Davis, 147 N.J. Super. 540, 543 (App. Div. 1977) (recognizing that "completion of a custodial sentence will not affect defendant's right to appeal from the underlying conviction"). Instead, as we have indicated, defendant appeals from the court's orders implementing several post-conviction decisions.

Under such circumstance, defendant's arguments will be moot unless he has "a substantial stake in the [orders] which survives the satisfaction of the sentence imposed on him." Sibron v. New York, 392 U.S. 40, 57-58, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917, 931-32 (1968). Therefore, such disputes will not be moot only if there are collateral consequences which are imposed upon defendant by the challenged decision. See e.g., Bd. of Trs., supra, 147 N.J. Super. at 543. In this case, however, there are no collateral consequences that flow from defendant's incarceration beyond August 15, 2005, other than the consequences that would normally result from defendant's criminal convictions and previous incarceration.

Moreover, defendant's current civil commitment under the SVPA is unrelated to this appeal. To be civilly committed under this statute, the Attorney General must initiate the commitment based upon clinical evaluations. N.J.S.A. 30:4-27.28. The resulting commitment is in no way a consequence of, or related to, either the trial court's vacation of its probation order or the denial of defendant's change-of-custody motion. In fact, the SVPA allows the initiation of commitment proceedings against any individual at any time, regardless of his or her status. Ibid. Therefore, even if defendant's motion had been granted and not vacated, the Attorney General would still have been free to seek the same commitment that currently deprives defendant of his liberty. Consequently, we are constrained to dismiss this appeal as moot.

Dismissed.

 

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A-1912-05T4

December 4, 2006