IN THE MATTER OF THE CIVIL COMMITMENT OF M.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF M.T., SVP 635-12.

________________________________

May 28, 2014

Submitted February 11, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-635-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jacobine K. Dru, Deputy Attorney General, on the brief).

PER CURIAM

Appellant M.T. appeals from a March 16, 2012 order finding he is a sexually violent predator in need of involuntary civil commitment, and ordering that he be committed to the Special Treatment Unit (STU), pursuant to New Jersey's Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In his appeal, M.T. argues the following:

POINT I

BY ALLOWING THE STATE'S EXPERT TO BASE HIS DIAGNOSES AND CONCLUSIONS ON ALLEGED FACTS ESTABLISHED THROUGH INADMISSIBLE HEARSAY, THE SVPA PROCEEDING VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 10 (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES).

A. Application Of Criminal Due Process Protections To Civil Cases.

B. The State Cannot Evade The Confines of Apprendi/Blakely/Shepard Through The Backdoor of R. 703.

POINT II

THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT CONSIDERING OR GRANTING A CONDITIONAL RELEASE WHERE THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.T. WOULD BE SUBSTANTIALLY LIKELY TO COMMIT A SEXUALLY VIOLENT OFFENSE IN THE REASONABLY FORESEEABLE FUTURE IF HE WERE SO DISCHARGED.

We have considered M.T.'s contentions in light of the record and applicable law and affirm.

I.

On December 27, 1991, police arrested twenty-three year old M.T. for the sexual assault of M.J., a fourteen year old girl. After meeting M.J. the previous night at an arcade in a mall, M.T. went to M.J.'s home, pushed his way in, asked M.J. for a hug and a kiss and then forced her to the ground, removed her clothes, and vaginally raped her. Afterward, according to M.J., he apologized, telling her that he blacked out and did not know what he did. After defendant left, she contacted the police, who later found and arrested M.T.

While out on bail, the police again arrested M.T. for another sexual assault this time of T.T., an adult female. According to T.T., while walking home after her car had broken down, M.T. chased and grabbed her, forcing her into a small wooded area. Initially, she broke free and tried to run, but M.T. stopped her, pushed her to the ground and vaginally raped her. Later, M.T. voluntarily surrendered himself to the police. When asked if he had a problem, he conceded, "I guess I am a rapist." He recounted the incident to the police, and told them he had "blacked out and remembered nothing [of the attack] until he awoke on top of the victim[.]"

On June 19, 1992, M.T. pled guilty to second-degree sexual assault of a minor, N.J.S.A. 2C:14-2(c), for which the court sentenced him to four years at the Adult Diagnostic and Treatment Center (ADTC), after finding his behavior to be compulsive and repetitive, based on an ADTC report.

As to the incident with T.T., a jury convicted M.T. of first-degree kidnapping, N.J.S.A. 2C:13-1(b); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); and third-degree criminal restraint, N.J.S.A. 2C:13-2. The court sentenced M.T. to an aggregate thirty-four years imprisonment, consecutive to his sentence for the previous crime, to be served at ADTC. M.T. was scheduled to max out on his sentences on approximately March 1, 2012.

On February 16, 2012, the State filed a petition for M.T. s civil commitment under the SVPA. The application included copies of his judgments of convictions for the predicate offenses, and the requisite certified clinical certificates by two psychiatrists, Marina Moshkovich, M.D., and Anasuya Salem, M.D. Both certified that M.T. was a sexually violent predator. Judge James F. Mulvihill presided over M.T.'s commitment hearing on March 13 and 16, 2012. The court heard testimony from the State's expert witness, psychiatrist Michael Kunz, M.D., and from M.T.

Before testifying, Dr. Kunz evaluated M.T. for almost two hours on March 5, 2012. In preparing his report, he reviewed a "discovery file," including judgments of convictions, indictments, presentence reports, and investigation reports. He also reviewed the reports of M.T.'s various treating doctors, teachers, evaluators, and the Special Classification Review Board (SCRB) of the ADTC (collectively "treatment team"), as well as other ADTC reports and the clinical certifications appended to the petition. Specifically, these included reports by clinical psychologist Mark Frank, Ph.D., a Dr. Kaplan, and William T. Boyd, M.D., in addition to the two certifying doctors. Dr. Kunz testified that the materials he reviewed were of the type normally considered by persons in his profession when preparing such reports. He said that it was important to review these materials,

[b]ecause these materials provide me with information about the behavior and statements made by the person I evaluate, also about the actions that were recorded, and all that gives me information to help me form the diagnosis and also . . . assess the risk for recidivism.

Some materials also contained diagnoses, which Dr. Kunz did not adopt. He instead formulated his own diagnosis.

Dr. Kunz testified about M.T.'s personal history, including the fact that his grandparents raised him because his mother was a teenager who never really took part in M.T.'s care. In addition, he discussed M.T.'s reporting that at the age of nine to ten, he had been sexually assaulted on several occasions by his older brother, and that the nature of the assault included anal rape. Also, he noted that M.T. never married, though he reportedly has had many girlfriends, some long term, and some short term. He had a daughter, age twenty-four at the time of the hearing, with whom he had not had any contact as she was given up for adoption shortly after her birth.

Dr. Kunz further discussed M.T.'s history of numerous sexual encounters as reported by M.T. to Dr. Salem and Dr. Kaplan. According to those reports,

[M.T.] reported a frequent sexual life, having sexual encounters every other day. . . . He had sex with prostitutes about 20 to 30 times in 1988 and 1989. . . .

. . . .

. . . [M.T.] has experienced rape fantasies since about high school, and he reported, . . . that these fantasies or urges to rape were stronger or more exciting for him than fantasies about consensual sex. . . . He was quite preoccupied . . . with sexual fantasies. He also told various clinicians that he had acted on the fantasies[.]

Dr. Kunz recounted M.T.'s predicate offenses, distinguishing between official accounts and M.T.'s versions of the events. As to his assault of M.J., M.T. reported that she had willingly let him into her home, and "that there were several episodes of sort of sexual foreplay in which M.J. and [M.T.] were kissing and touching each other." In his version, M.T. reported that he committed sexual assault and that M.J. struggled and screamed. He also reported that he decided to pretend that he had blacked out and was not sure what was happening. "[I]n that regard both the official account and [M.T.'s] account agree." As to the assault of T.T., M.T. reported one small discrepancy: that the victim had said something which initially caused him to let her go. But "[t]hen she said something else, and at that point he grabbed her again and continued his assault."

Additionally, Dr. Kunz testified that M.T. disclosed several "uncharged sexual offenses" during his initial evaluation by ADTC, throughout his treatment at ADTC, and in his evaluation with Dr. Kunz, during which he reported two such offenses. In November 1992, he told Dr. Frank about two sexual assaults, which "Dr. Frank characterized . . . as being in the context of mutually agreeable romantic encounter." Dr. Kunz characterized these incidents as "date rapes." Also, a June 2006 report by Dr. Kaplan "refer[red] to three or four other rapes that had occurred in the street, and five or six date rapes." M.T. told Dr. Kaplan that half of the incidents involved underage or teenage girls. Additionally, Dr. Salem's February 2012 report said that M.T. told her about four more incidents involving adult women: two completed, and two attempted.

M.T. told Dr. Kunz that "his rape fantasies . . . stopped shortly after his arrest, and that he has not experienced any of these fantasies essentially since the arrest," which as Dr. Kunz found it

. . . very hard to believe, particularly in view of how strong and frequent these fantasies and urges seemed to be prior to the arrest. So, it would be it's hard to imagine that the fantasies that are this strong, this compulsive, this frequent, would just abruptly stop shortly after he was arrested in the early 1990s. And that sort of jives with the comments that were made by treaters at the ADTC that [M.T.] has not really addressed the issue of his own sexual fantasies in treatment.

M.T. denied having any "pop up" fantasies, which describes deviant fantasies that may occur or be triggered by stimuli. Instead, when asked about his current fantasies, M.T. "described them as healthy, like as living in a committed relationship, or wanting to be married." Dr. Kunz questioned the veracity of this as well because "these aren't really sexual fantasies," and "people don't generally [have] fantasies about relationships."

Dr. Kunz also testified about M.T.'s treatment, which began when M.T. was committed to ADTC in July 1993 continuing to February 2012. He did not do well initially, but improved over the years, eventually progressing to level three process groups. He did a good job in terms of helping his peers, by providing feedback, and helping them understand their sexual dynamics. However, M.T. was apparently less successful in addressing his own issues because, as ADTC reports indicated, he lacked openness and had a poor understanding of his own sex offending dynamics. As Dr. Kunz testified, "That seems to be consistent, that he was giving feedback to others, working with others, but when asked to focus on his own issues he was reluctant."

In conducting a Mental Status Examination, Dr. Kunz noted "some degree of emotional flatness" in M.T. He added that other reports had also mentioned M.T.'s emotional detachment. M.T. did not seem empathetic or genuine in speaking about his victims, "but it sounded like something that . . . one is taught in a class, that sort of information that I didn't think he really emotionally appreciated." Moreover, in his version of events, M.T. appeared to "mitigate his aggressiveness" by describing M.J. "as essentially being compliant with . . . a lot of the behaviors, whereas she described this as a sort of straight assault." However, Dr. Kunz also testified that M.T. had likely retold these stories many times in treatment, and that his empathetic response could diminish after years of repetition.

Dr. Kunz also explained that, despite years of treatment, M.T. was unable to provide a coherent account of his "assault cycle":

The assault cycle is a really crucial element of relapse prevention where one is taught to understand their risk factors, and the chain of events that leads from the risk factors, whether they are external risk factors or internal risk factors, to the person eventually offending, and the expectation is that the person has a pretty thorough understanding of this chain of events. And [M.T.'s] understanding is sort of fragmented. He has some awareness of some risk factors, but how these risk factors then lead to him actually offending, it seems he doesn't have an understanding of that. . . . [T]he two elements of the sexual assault cycle are called justification and pretend normal phases, phases which justification refers to cognitive distortions that people form when they assault, sort of explaining why they did what they did. And pretend normal is an element where the person sort of ignores what had happened, and goes back to their normal life. And he seems to sort of merge these two without distinctly explaining what his justification was[. H]e reported one cognitive distortion where he said . . . that in the past [he] believed that women should not be out at night by themselves, meaning that they sort of in a way make themselves available to assaults. But . . . I would expect a person who had gone through such a long treatment to have a more detailed, more sort of fluent understanding of their sexual assault cycle.

Yet, Dr. Kunz confirmed he read a July 2010 report by Dr. Boyd, which stated that M.T. had "gained a fair level of understanding of his deviant cycle, high risk situations, and cognitive distortions." Dr. Kunz testified that he never reached out to Dr. Boyd to reconcile the discrepancy in their opinions.

According to Dr. Kunz, in January 2013, M.T. entered the Therapeutic Community (TC), which is considered an advanced step in treatment, and is generally required as a step prior to being released. Residents are expected to spend at least a year at TC, "where the peers offer them much more focused and intense feedback, and that essentially is supposed to prepare them for the community where they would be exposed to [a] more stimulating environment, and they have to be able to cope with that stress[.]" But M.T. requested to leave TC after just one month, reportedly because he had "difficulty adjusting to the treatment intensity."

Dr. Kunz also discussed M.T.'s results on various clinical tests. An MMPI-2 test detailed in Dr. Frank's report found him to be "impulsive and immature, oriented towards pleasure seeking, self-gratification." Dr. Kunz administered a Static-99, a risk assessment tool for sex offenders. On a scale from zero (low risk) to six plus (high risk), Dr. Kunz rated M.T. a five. However, he believed that M.T. posed an even higher risk than the test indicated, due to certain aggravating factors. These included "intimacy deficits [or] the absence of long term relationships, the sexual preoccupation that [M.T.] had had in the past," and the fact that he committed the assault on T.T. even after his arrest for assaulting M.J. "In fact, [M.T.] told [Dr. Kunz] that the two uncharged offenses occurred between the 1991 and 1992 offense, so there were according to his report to [Dr. Kunz], three sexual assaults after he had just been arrested for the 1991 offense." This indicated a "lack of response to certain sanctions that were imposed on him in the community."

Based on his assessment, Dr. Kunz diagnosed M.T. with Paraphilia, Not Otherwise Specified (NOS), nonconsent. Paraphilia is characterized by "recurrent intense and sexually-arousing fantasies, sexual urges or behaviors that include some form of deviant sexual activity." With respect to Paraphilia NOS, non-consent in particular, "the sexual activity includes having sex with nonconsenting individuals." Dr. Kunz found this to be an appropriate diagnosis, in light of M.T.s' own report of having frequent, compulsive rape fantasies; the fact that he acted on his urges; his numerous disclosed offenses; and that these offenses "occurred over a period of time longer than six months, which is the minimum period of time stated in the DSM-IV." He added that Paraphilia was not a condition that could remit by itself, and predisposed M.T. to committing sexually violent offenses.

After Dr. Kunz's testimony, M.T.'s attorney objected to the doctor's reliance on reports from witnesses who did not testify and the admission of the materials into evidence. In support, he argued that the "discovery file" and various reports were hearsay, and that their consideration would violate M.T.'s Confrontation Clause rights.1 The judge overruled the objection, relying upon our decision in In re Civil Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), certif. denied, 192 N.J. 295 (2007), and the fact that Dr. Kunz did not adopt the reports but used them in reaching his own diagnosis.

In his subsequent testimony, M.T. confirmed much of the information about which Dr. Kunz testified. For example, M.T. confirmed that he had never been in treatment for his condition prior to his arrests, and that he was a victim of child abuse, which he disclosed for the first time while at ADTC. He testified that he began having deviant fantasies after high school, which were triggered by the anger he carried from having been molested when he was young, and the negative relationships and situations that he had been in. He further explained that Dr. Salem had misinterpreted him, and that he did not claim that his deviant fantasies had stopped abruptly. Rather, according to M.T., he was in denial during the early stages of his treatment:

I was still at that point in denial. I didn't want to face up to what I had done, what had led me to do it. I was just in complete denial. And as the time has gone on I have been able to come to grips with what I did with the empathy and remorse that I have for the people that I harmed and just really being able to come to grips with, you know, the therapy that I needed to have, and what I needed to do to change my life, and change myself, you know, from the person that I was 20 years ago.

M.T. testified that after engaging in therapy for some time, the fantasies had become less strong and his last "full-blown, robust" fantasy had been just after 2000. What he experiences now are "pop-ups" more fleeting fantasies, and less strong.

M.T. also clarified some of Dr. Kunz's testimony. He stated that he did not engage twenty to thirty prostitutes within a two year period, from 1988 to 1989; rather, he had engaged prostitutes from high school to the time he was arrested, which was in fact a four year period. He also said that there was often confusion as to his number of victims. He maintained that he had committed no more than six sexual assaults; against M.J., T.T., and four other assaults and attempts that occurred during the time between his two arrests. He testified that the incidents were not date rapes, and that he never said that half of the victims were underage. In addition, he disputed Dr. Kunz's finding that he did not understand the "assault cycle." He explained the ADTC teaches that concept differently than Dr. Kunz's explanation.

He also testified about the inadequacy of his treatment during his time at ADTC, by six different companies that the state contracted to treat the residents. The new companies came with new therapists, created new groups, and employed new treatment modalities, which disrupted his therapy and progress in treatment. Also, despite treatment reports to the contrary, he said that he has displayed emotion in therapy, and that he has accepted his guilt repeatedly. In addition, he testified about his progress, working as a therapy aide, running self-help relapse prevention and tutoring groups.

With respect to his joining the TC, M.T. explained that residents usually stayed with the community during a ninety day probationary period, after which residents were asked if they wanted to stay. He maintained that he had stayed in TC during the full ninety days. He said that it was not necessary to participate in TC in order to be released from treatment, and that most residents did not participate in TC, but rather in other programs that provided the equivalent level of treatment.

Finally, M.T. said he was more likely to comply with the judge's orders if released under certain conditions "because of the treatment, and because of the time I have definitely changed from the person I was 20 years ago. Also, I have a . . . great support system." He added that he would comply with conditions in order to prove himself. He said he had no problem following the rules.

Judge Mulvihill found M.T. to be "generally credible." However, he also said that M.T.'s labelling certain aspects of Dr. Kunz' and Dr. Salem's reports as "misunderstanding[s]" indicated that he was "minimizing" his issues. Moreover, Dr. Kunz' opinion had been uncontroverted. Accordingly, he found by clear and convincing evidence that M.T. had been convicted of two sexually violent offenses; that he suffered from Paraphilia NOS, nonconsent, a mental abnormality or personality disorder that did not spontaneously remit; and that he was highly likely to engage in further acts of sexual violence and re-offend "if not confined to a secure facility for control, care and treatment," even though M.T. experienced some mitigation of his symptoms through treatment and due to his age. However, the judge found M.T. was dealing with a "present serious difficulty with control, and it's highly likely that he will reoffend[.]"

II.

Under the SVPA, an offender may be involuntarily committed following service of his sentence, if he (1) "has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense"; (2) "suffers from a mental abnormality or personality disorder," N.J.S.A. 30:4-27.26 (defining "sexually violent predator"); and (3) "as a result of his psychiatric abnormality or disorder," is "highly likely" to engage in acts of sexual violence "if not confined in a secure facility for control, care and treatment." In re Civil Commitment of R.F., 217 N.J. 152, 185, 188 (2014). A committee is likely to reoffend if he demonstrates a present, rather than past, "serious difficulty" in controlling sexually harmful behavior. In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).

At the commitment hearing, the State must prove each of these elements by clear and convincing evidence. N.J.S.A. 30:4-27.32; In re Civil Commitment of J.M.B., 197 N.J. 563, 571, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). As our Supreme Court noted, "[t]he terms of the statute must be strictly met." R.F., supra, 217 N.J. at 173. "The State cannot confine a person because it is reasonably likely that he will not be able to abide by all of society's laws or norms." Ibid. "SVPA commitment is limited to those who are highly likely to sexually reoffend." Id. at 173-74.

"The final determination of dangerousness lies with the courts, not the expertise of psychiatrists and psychologists." In re D.C., 146 N.J. 31, 59 (1996). "The ultimate decision on dangerousness is, therefore, a legal one, not a medical one, even though it is guided by medical expert testimony." Ibid. (citing In re Newsome, 176 N.J. Super. 511, 516 (App. Div. 1980); State v. Krol, 68 N.J. 236, 261 (1975)).

Our scope of review for a judgment of commitment is "extremely narrow." R.F., supra, 217 N.J. at 174 (citing D.C., supra, 146 N.J. at 58). We must accord "special deference" in light of the committing judge's "expertise" in this area. Ibid. The trial court s determination is accorded "'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." D.C., supra, 146 N.J. at 58-59 (citing Fields, supra, 77 N.J. at 311).

III.

A.

M.T. first argues that the trial court should not have allowed the State s expert to base his diagnosis and conclusions on alleged facts established through inadmissible hearsay. In so doing, he claims the SVPA proceedings violated his rights to procedural due process, equal protection and substantive due process under the Fourteenth Amendment and the New Jersey Constitution, Article I, paragraph 10. We disagree.

In seeking an order of commitment, the State is statutorily required to present a psychiatrist's testimony, based on his or her personal examination of the potential committee. N.J.S.A. 30:4-27.30(b); In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 222-23 (App. Div. 2007). While out of court statements used to prove the truth of the matter asserted are generally inadmissible, N.J.R.E. 802, an evaluating expert who has relied on an out of court statement in forming his or her opinion may testify to it at trial, so long as the information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." N.J.R.E. 703; see E.S.T., supra, 371 N.J. Super. at 571. Therefore, in addition to his or her personal examination, a psychiatrist may rely on other information in forming his or her opinion, such as presentence reports, ADTC evaluations, In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004), certif. denied, 183 N.J. 586 (2005), and criminal histories. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (citing State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001)), certif. denied, 179 N.J. 312 (2004).

In addition, "[i]t is beyond question that medical experts rely upon the opinions of prior treating physicians." E.S.T., supra, 371 N.J. Super. at 572. "[T]he reports themselves [may be] admissible for their truth under applicable exceptions to the hearsay rule[,]" including as business records, admissible under N.J.R.E. 803(c)(6), or, if they include defendant's statements made to the treatment team or others, as statements of a party under N.J.R.E. 803(b)(1). In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004). A testifying expert needs to rely upon such information "to obtain a history of what happened through the years, to see how the people involved in the offenses viewed the offenses, and to get a sense of the way [the committee] responded to these situations over time. J.H.M., supra, 367 N.J. Super. at 613. Experts may consider this information, including the opinions of non-testifying experts, as long as they formulate their own opinions and do not simply "parrot" that of the experts who did not testify. In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App. Div. 2005).

Judge Mulvihill, therefore, did not abuse his discretion in finding that Dr. Kunz properly considered the information he obtained from others, including expert opinions. While considering the opinions of the certifying psychiatrists and others, his diagnosis was based on M.T. s entire treatment history and his examination of M.T. as well as statements made by M.T. to his treatment providers and to Dr. Kunz. His ultimate diagnosis, therefore, was not a wholesale adoption of previous forensic evaluations, but rather it was formulated by Dr. Kunz based upon documents that were of the type typically relied upon by experts in his field, ibid., and Dr. Kunz's interview of M.T.

B.

M.T. also argues that Dr. Kunz relied on impermissible non-conviction evidence that can no longer be a basis for civil commitments, based on the Court's decision in In re Registrant, C.A., 146 N.J. 71 (1996) and, according to M.T., its subsequent reversal by the United States Supreme Court in three criminal cases. In C.A., supra, the New Jersey Supreme Court approved the limited use of non-conviction offenses in determining a defendant's tier classification under "Megan's law."2 The Megan's Law tier classification process is, however, unrelated to civil commitments under the SVPA. In enacting the SVPA, "our Legislature intended to create a civil, rather than a penal, statute." In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, _ U.S. _, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). In State v. Bellamy, 178 N.J. 127 (2003), the Court rejected the argument that civil commitment under SVPA is a "direct and penal" consequence of a guilty plea, "because commitment does not automatically flow from the conviction." 178 N.J. at 137-38. "[C]ivil commitment under the [SVPA] is a collateral consequence of defendant's plea." Id. at 138.

We therefore reject M.T.'s argument that the three United States Supreme Court criminal cases, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), preclude the admission of non-conviction evidence to support an expert's opinion in a civil commitment hearing. Those cases have no bearing on civil commitment proceedings, and Dr. Kunz and the court properly relied on M.T.'s non-conviction evidence which was primarily based on M.T.'s own reporting.3

IV.

M.T. also argues that the trial court erred as a matter of law by not considering granting him a conditional release because the State failed to prove by clear and convincing evidence that he would be substantially likely to commit a sexually violent offense in the reasonably foreseeable future if he were conditionally discharged. His argument indicates that (1) an SVPA commitment requires proof of an additional element, that a defendant is likely to re-offend if conditionally discharged; and (2) the burden is on the State to prove that a conditional discharge would be inappropriate. We disagree.

The SVPA allows for the conditional discharge of a "sexually violent predator" only on the recommendation of the Department of Human Services. N.J.S.A. 30:4-27.32(c)(1). Absent that, if a defendant is found not to be a sexually violent predator, the court must order that he or she be discharged upon completion of service of their original term, N.J.S.A. 30:4-27.32(b), but may make the discharge subject to conditions even though the statute does not explicitly provide for them. In re Civil Commitment of E.D., 353 N.J. Super. 450, 458 (App. Div. 2002), certif. denied, 196 N.J. 86 (2008). Also, a committee has "the right . . . . to demonstrate at any future hearing that he can be released on a conditional discharge with a reasonable likelihood of safety." In re Commitment of J.J.F., 365 N.J. Super. 486, 500 (App. Div.), certif. denied, 179 N.J. 373 (2004). In other words, a potential committee may present evidence that "with treatment and a sound conditional release plan, he might not be highly likely to reoffend," and thereby challenge that prong of the SVPA. Ibid. A court should always consider "such conditional release . . . if properly documented and supported." Id. at 501.

M.T. argues that we should now find that the judge erred in not considering granting him a conditional release. However, he ignores that it was his burden to present a safe conditional release plan. M.T. did not provide his own expert witness to challenge Dr. Kunz' testimony, nor did he provide any additional evidence of a safe conditional release plan. Without offering any proof, M.T. failed to meet his burden and therefore Judge Mulvihill properly did not consider a conditional release.

V.

We are satisfied that Judge Mulvihill, in his evidentiary rulings and ultimate decision, properly balanced the State's interest in "protect[ing] the public from dangerous predators and . . . treat[ing] sex offenders who are, by definition, suffering from a mental abnormality," W.X.C., supra, 204 N.J. at 188, against M.T.'s "legitimate interests in assuring accurate evaluation of the risk of re-offense[.]" Doe v. Poritz, 142 N.J. 1, 32 (1995).

Affirmed.

1 U.S. Const. amend. VI.

2 Under the Megan's Law Registration requirement, certain sexual offenders must register with local authorities and, in turn, those authorities are required to provide notification to the community. N.J.S.A. 2C:7-2(a). Appropriate levels of notification are prescribed in three "tiers" to which registrants are assigned, "depending upon the degree of the risk of re-offense." N.J.S.A. 2C:7-8(a).

3 M.T. also alleges equal protection violations, but has made no attempt to support the argument other than the effect of these cited cases on C.A., supra.