*1 964 A.2d COMMITMENT THE MATTER OF THE CIVIL IN J.M.B., OF SVP-358-04. February 2009. Argued September 2008 Decided *6 Advocate, Pelt, argued the cause Deputy Public D. Joan Van (Ronald Chen, Advocate, attorney; K. Public appellant J.M.B. for Counsel, Culleton, Designated F. Ms. VanPelt William briefs). Albano, General, Attorney the cause argued Deputy
Lisa Marie (Anne Attorney Milgram, respondent Jersey State of New for Raksa, attorney; Deputy Jersey, Melissa H. New General of counsel). General, Attorney of opinion of Court. delivered the
Justice LaVECCHIA the civil commitment Following hearing, a a trial court ordered Special Treatment Department of Corrections’ to the of J.M.B. Attorney (STU) persons. The General sexually for violent Unit Jersey’s Sexually commitment under New petitioned for J.M.B.’s -27.38, (SVPA Act), N.J.S.A. 30:4-27.24 Predator Act Violent person has “sexually as a who predator” a defines which guilty by “convicted, found not adjudicated delinquent or been violent offense.” insanity for commission of reason of any “sexually can be A violent offense” 30:4-27.26. N.J.S.A. SVPA. See N.J.S.A. 30:4- listed as such in the specifically offense 27.26(a) (subsection (a)). which the “any offense for It also can be on the finding on the record based specific court makes case, person’s should be consid- offense circumstances 30:4-27.26(b) (subsec- N.J.S.A. violent offense.” ered (b)). tion any Because J.M.B.’s convictions not were SVPA, petitioned offenses listed in the the State for civil commit- (b) ment under the subsection standard.
The civil commitment court
prior
found that four of J.M.B.’s
“sexually
constituted
offenses
violent offenses” and ordered his
appealed,
commitment to the
raising
STU. J.M.B.
several novel
questions
(b)’s
the application
about
of subsection
definition
“sexually violent
as the
offense”
basis for civil
commitment.
affirming
commitment,
the trial court’s order
Appellate
*7
rejected
Division
all
arguments.
of J.M.B.’s
In re Commitment of
J.M.B.,
(2007).
N.J.Super.
928 A.2d
granted
We
petition
certification,
J.M.B.’s
for
193 N.J.
I. prior offenses, J.M.B. has eight been convicted of most of which patterned involve respect unusual behavior in of his victims. In each pleaded guilty case he and was sentenced serve time facility a correctional According State, or was fined. to the sexually is a predator violent requires who civil commitment notwithstanding only charged once was he an with offense (a)’s that is sexually offenses, included in subsection of list violent (incident victim, F.S., involving 1989), number four the and that charge pleaded was dismissed guilty when J.M.B. to different charges. summarizing Before the underlying incidents J.M.B.’s offenses the findings, commitment court’s we turn first to the unique aspect statutory provides scheme that the for basis the application State’s civil commitment in this matter.
II. A. Jersey’s provides New involuntary SVPA for the of commitment any person requires who involuntary “continued commitment aas sexually 30:4-27.32(a). predator.” violent N.J.S.A. Legisla- society of from protect the SVPA other members ture enacted predators. N.J.S.A. 30:4- sexually danger posed by violent involuntary “to civil modify the 27.25. The Act is intended the need for commitment of process recognition commitment pose danger a to others sexually predators who those violent 30:4-27.25(c). N.J.S.A. society.” they be returned should involuntary for commitment of provided earlier laws Whereas ill, legislation Legislature the new mentally declared from necessary nature the mental condition because “[t]he may always sexually predator may not lend a violent suffer which standard, statutory existing itself to characterization under the due to may be warranted although civil commitment nonetheless may a result of the mental danger person pose others as 30:4-27.25(b). condition.” N.J.S.A. may appears person that a it provides “[w]hen
The Act sexually predator in this violent as defined meet the criteria of act, give notice to the agency jurisdiction shall written with notification, 30:4-27.27(a). Upon N.J.S.A. Attorney General.” including proceeding to have a an initiate a court person, General Attorney may term of of his or her maximum expiration inmate scheduled release upon as violent submis- “by committed incarceration, predator, involuntarily at least clinical for a predator, sion to the court two certificates N.J.S.A. 30:4-27.28b & c. one of which is by psychiatrist.” prepared *8 Mumin, N.J.Super. [State (App.Div.2003) ]. v. A.2d 370, 382, 361 825 1144 proceedings, the must demonstrate In State commitment convincing poses that “a by evidence the individual clear and safety of if he or she were found to health and others threat the controlling harmful difficulty in his or her ... to have serious likely the will not highly is that individual behavior such it In sexually and will reoffend.” his or her violent behavior control (2002). W.Z., 109, 130, N.J. A .2d re 801 205 Commitment of 173 “[cjommitment contingent Act is on succinctly, under the Put condition, behavior, a past sexually current mental proof of violent sexually inability adequately control to one’s and a demonstrated 127, 136, Bellamy, v. 178 N.J. A.2d harmful conduct.” State 835 (2003). trigger application provisions In order to of the of the SVPA, person a “sexually must preda first be deemed a violent 30:4-27.27(a). N.J.S.A. tor.” “sexually A predator” violent is defined as adjudicated guilty who convicted, has been or person found not by delinquent charged of reason for commission of a violent insanity sexually or been offense, has
with a to violent offense but found be to stand trial, incompetent suffers from a or mental abnormality disorder makes the personality person engage to in acts of sexual not likely violence if confined in a secure for facility care and control, treatment. [N.J.S.A 30:4-27.26.] offense,” “sexually turn,
A violent carries two definitions: (a) aggravated aggravated sexual assault; assault; sexual criminal contact; sexual (b) (2) kidnapping subparagraph paragraph pursuant of of subsection c. of (3) paragraph criminal N.J.S.2C:13-1; sexual contact; felony murder pursuant underlying the N.J.S.2C:ll-3 if crime sexual assault; is an to commit attempt these enumerated or any offenses; a criminal offense with the substantially same elements as offense any enumerated entered or above, under the imposed laws of United or States, this State another state; (b) finding offense for which the any court makes on the record specific based on the circumstances of the case, offense should be considered person’s violent offense. (b)J 30:4-27.26(a), [N.J.S.A. have,
Although occasions, we on several legal addressed the procedural requirements involuntary for commitment under sub- (a), see, e.g., Bellamy, supra, 178 N.J. at section 835 A.2d W.Z., re 1231; supra, Commitment 173 N.J. at 125-34, time, A.2d first being we are Attorney asked approve General involuntary continued commitment of an (b). inmate under subsection
B. legislative history gives guidance SVPA itself little 30:4-27.26(b)’s the application of N.J.S.A. definition of a sexually However, plain offense. language, purpose, and inter- nal logic of signal the Act all grant it was intended to courts authority approve involuntary commitment of an indi-
573 sexually a for a violent offense not have conviction vidual who does (a). as defined in subsection (b)
First, a plainly states that language of subsection the “any the court makes sexually is offense which violent offense that, on the circumstances of finding a on the record based specific sexually case, a person’s should be considered offense 3:40-27.26(b). significant It is offense.” N.J.S.A. violent (a) provision encompass although a intended to subsection contains crimes, that or another state” and crimes of “this State federal “substantially any as offense enumerated” the same elements have 30:4-27.26(a), Legislature included the author- also N.J.S.A. (b) “finding make own on the for a court to its ization subsection case,” record, “person’s a circumstances of the based be a violent offense.” N.J.S.A. offense should considered 27.26(b). nullity it provision be rendered were That would 30:4— (a), concept in subsection simply as reiteration of to be read may having “substantially the same find a crime that a court offense” to be as an enumerated elements offense. mere Legislature’s words
Interpretations that render
Rather,
in D’Annunzio v.
as we said
surplusage are disfavored.
America,
110,
192
927
Company
N.J.
Insurance
Prudential
(2007),
every
requires
task
effort be made
.2d 113
our
A
language.
vitality in
chosen
find
give meaning
interpreting
regulation,
to all
we
a statute or
endeavor
“When
language
mere
to avoid an
reduces
interpretation
specific
words and
Montgomery,
surplusage.”
296,
DKM
v.
N.J.
Twp.
Residential Props. Corp.
(2005) (citing
N.M.,
602, 613,
One v.
157 N.J.
A.2d 1104
Norman
(6th ed.2000)).
§ 46:06, at 190-92
113.]
927 A.2d
192 N.J. at
[D’Annunzio, supra,
Ass’n, Inc. v. Bor
Ramapo
Homeowners
also
River Reserve
See
(2006)
Oakland,
439, 450,
(recogniz
N.J.
That appears with consistent the overall of intent Legislature enacting when this comprehensive scheme for the civil predators. commitment of sexual Legislative findings The clearly paramount make protect society the SVPA’s intention to through sexually predators the “commitment of those violent who pose danger they society.” to others should be returned to 30:4-27.25(e). N.J.S.A. In of goal, furtherance that stated Legislature necessary authority found it to include the additional (b), through authorizing identify conferred subsection a court to person predator as a violent even when not he she has been convicted of an precisely, offense that fits or with substantial equivalence, the elements of encompassed the crimes in subsection (a)’s listing. (b)
Indeed, only subsection is not the instance within the SVPA Legislature sought in which the involuntary to authorize the persons commitment of who have not been convicted a subsec- (a) tion provides enumerated offense. The Act also for the civil “persons lacking capacity commitment mental to stand trial.” Although person N.J.S.A. 30:4-27.33. neither a unable to stand person trial nor a convicted of a crime other than those listed (a) technically subsection will have an been convicted of enumerat- offense, ed Legislature it is clear that the intended Attorney to endow the authority General with the to seek the involuntary falling continued commitment persons into both categories. Legislature’s to apply intent the SVPA to those whose
convictions occurred before the enactment of the SVPA also
(b).
Bellamy, supra,
interpretation of subsection
informs our
the Act is a collater-
this
held that “civil commitment under
Court
plead guilty to an
consequence”
al
of a defendant’s decision to
N.J. at
That subsection Attorney persons of offenses General to seek out convicted (a), attempt in indiscrimi- other those listed subsection and to than (b)’s open-ended definition nately to commit them. Subsection persons. commit reasonably be read as an invitation to cannot must be harmonized for otherwise subsection The two subsections (a)’s (b)’s specific grounds up subsection definition would swallow of and the delinea- for the list enumerated offenses commitment: “substantially of foreign comprised tion of and other convictions the same” elements. only relationship knowledge,
To decision to address the our J.P., re 393 provisions, the two Commitment between of N.J.Super. 754 (App.Div.2007), A.2d reasoned that such necessary determining findings harmonization was when re (b). quired for a violent offense under subsection The (a)’s type J.P. court focused on the conduct of that subsection capture. offenses (b) light
The definition in must be in of open-ended subsection interpreted (a)____When subparagraph the associated definitions read scope specific together, paragraphs Legisla- the rational construction of these two shows that the it ture considered violent offense” to also include appropriate expand “sexually conduct which demonstrates the elements the enumerated (a), though delineated subsection even the conviction be an may offenses findings offense other than those listed. The specifically specific requirement (b) just subsection assures not conduct the demonstrated conduct any suffices; must be in the nature of the of sexual offenses enumerated. type added).] 16-17, (emphasis at 922A.2d [Id. approach taken in In re Commitment J.P. reads the two (b)
provisions together sensibly reconciles them. Subsection just encompass must more than those offenses whose elements are substantially equivalent predicate to the offenses listed in subsec- (a) tion it surplusage. because otherwise would be mere At the time, (b) same subsection cannot be so broad as to subsume (a). By focusing subsection underlying on a defendant’s conduct *12 (b), sexually an offense claimed to be violent under subsection just offense, not on the elements the precipitating the conduct (b)’s sexually commitment under subsection definition of violent kept compatible offense can gleaned be with the standards from (a), the crimes identified in notwithstanding subsection that the predicate conviction an is for whose offense elements do not encompass completely sexually the violent conduct. “substantially equivalent conduct” standard that we find the Legislature envisioned, allowing when for this additional sliver of (b)’s swept by offenses to in definition sexually be subsection of a offense, where, violent is both practical. narrow and In the case (such by happenstance plea bargain aas or otherwise lenient charging) up a defendant ends with a conviction for a crime whose match, similarity,
elements do not with substantial the offenses (a), listed in equivalence subsection the substantial of the defen- ought in that conviction underlying connection with dant’s conduct applica- purview within the of the SVPA’s keep perpetrator to the tion. including the intent legislative
We conclude that (b)’s authority of a within the definition subsection narrowly reference the conduct expand, offense was and with (a)’s definition, the encompassed by the crimes listed in subsection (b) predicate an provide the offenses which subsection would hold application commitment under the SVPA. We for civil application an for civil commitment that faced with therefore when (b), may the circumstances that subsection a court consider under that prior When conduct is qualifying led to the conviction. substantially equivalent to the violent conduct encom (a), by prior then that passed offenses listed subsection the may predicate application for a commitment provide conviction the (b). further hold that determination under subsection We court, committing application by on the may be made contemplated Attorney clearly that such The SVPA General. at made after fact of conviction and might determination be sought plainly applies time is because the SVPA commitment preceded the SVPA’s enactment. persons whose convictions straightforward. proofs are application, an such been conviction have established prior The individual’s would doubt, or through proof beyond a reasonable trial based However, guilty plea. the SVPA is not through entry of a clearly it determined that part of the criminal code and has been Bellamy, punitive. See the SVPA is not civil commitment under Therefore, sum, A2d and in supra, 178 at 1231. N.J. findings proceeding two essential civil SVPA commitment First, predicate prior, convic must be established. fact must accomplish To 'State tion must be established. person that the who prove the conviction entered sought. person commitment is was convicted is the same whose *13 conduct, Second, underlying the person’s circumstances the the conviction, substantially equivalent to be must be demonstrated to sexually
the violent conduct Legislature that the concerned (a). led to the inclusion of the offenses listed in subsection To prove conviction, prior the “fact” of the and the “fact” that the circumstances satisfy of the individual’s substantially ease equivalent conduct, standard for violent both of which are necessary commitment, for civil provides applicable SVPA proof: standard of convincing clear and required. evidence is See 30:4-27.32(a).1 N.J.S.A. dissenting
Our colleague suggests that requires the SVPA finding 30:4-27.26(b) a under beyond N.J.S.A. a reasonable doubt. disagree. We upends That conclusion paradigm established by Legislature for SVPA decisions. The SVPA is a civil hence, statute the burden it establishes for findings relevant is convincing 30:4-27.32(a). clear and evidence. See N.J.S.A. To be (a) (b) sure both subsections will findings involve guilt beyond a reasonable doubt because that is the standard for a criminal occurs, conviction. Once conviction beyond reasonable drops doubt standard out of the case. It is then that operative. SVPA itself Act, becomes Under the the additional finding particular that a offense is already has been Legislature made (a), in subsection which denomi nates class of qualifying. offenses as contrary, To the subsec (b) requires tion finding by judge. the trial simply There is why no reason finding, in contrast to all findings other under require the Act would beyond a standard clear convincing.
III. We now turn to J.M.B. and the eight incidents that led to his ’ convictions. 1To the extent that In re Civil Commitment J.P., supra, at N.J.Super. suggests A.2d the lesser standard of "substantial evidence” is sufficient, it is disapproved.
A. 17,1977) (April 1. R.J. provide police to the details signed statements made
J.M.B.’s J.M.B. of this incident. In that statement about the circumstances R.J., ten-year-old drove him to a “picked up” admitted he ultimately area, up. Although attempted to tie him wooded unsuccessful, rope burns on up to tie R.J. caused J.M.B.’s efforts by running attempted escape to from the arms. When R.J. R.J.’s car, area, him, caught him back to his and drove carried J.M.B. “might have” threatened boy home. J.M.B. conceded he anyone if about the incident. with harm he told R.J. after he released statement continued to cover events
J.M.B.’s that, boys a picked up two other few he stated that he R.J. After boys brought the to and drove them to his home. He hours later bedroom, up tied the hands and feet one where J.M.B. later, untied the room. Fifteen minutes he boys and then left the incident, boys alcohol and boy. During this J.M.B. also served the marijuana. incidents, contributing pleaded guilty to on these J.M.B.
Based minor, marijuana to a delinquency of a distribution to the minor, threatening kill. sentenced to an indetermi- He was Center —which Reception the Youth and Correction nate term at year probation special with a well as to one suspended —as psychiatric treatment. required him to continue condition conviction, respect of his actions that J.M.B.’s The evidence came from his own statement involving R.J. was sexual nature and his one- plead to a sexual offense police. He did not Center was year Reception at Youth and Correction sentence progress reported making “good suspended he was to be because counseling.” psychiatric with his (October 7,1981)
2. E.H. fifteen-year-old 7, 1981, offered a ride October J.M.B. On E.H., E.H., According hitchhiking J.M.B. who was to school. “get high,” him if asked he wanted to and when he answered affirmatively, they reported drove to a wooded E.H. area. there, hair, grabbed once him him threw to the ground, throat, held a knife to his and told him to lie on his managed nearby stomach. E.H. to run to a house where the *15 police required were called. He suffered a throat wound that five stitches.
J.M.B., hand, giving on the other claimed that he was E.H. a ride to school when E.H. him directed to the wooded area and bag pills. then offered him a He claimed that E.H. became angry attempted punch and him when J.M.B. informed him that money. he had no swung J.M.B. claimed that he back and that E.H. threw a rock at him. 2, 1982,
On March County J.M.B. was indicted in Somerset second-degree aggravated assault third-degree criminal re- straint. conjunction The indictment issued in with a Middlesex County indictment place based on events that took one month county later that and are described hereinafter.
The E.H. incident has no established connection to sexual beyond expert opinion, assault offered before the commitment court, which identified the behavior in that fashion. The commit- ment court did not find this conviction to involve facts that permitted the offense be considered a violent offense (b). under Although ultimately subsection pleaded guilty J.M.B. charge to a E.H., of criminal restraint for his encounter with any gratification J.M.B. did not admit to sexual from this incident and, fact, by he claimed that he was assaulted E.H. Further- more, apparently even E.H. monetary attributed a motivation to the assault decongestant because he offered J.M.B. tablets if he go. would let him (November 8,1981) A.C.
3. While J.M.B. was free on bail for involving the indictment E.H., man, A.C., interaction with young reported another that he kidnapped by A.C., was J.M.B. on November 1981. who was incident, police sixteen-years-old told at the time road A.C. was pulled his car over to the side where J.M.B. walking to a friend’s house. He asked A.C. for directions. When map compartment to look at a A.C. leaned into the ear’s him, showing knocked unconscious. He J.M.B. was A.C. was him. was in to find his hands and feet tied behind J.M.B. awoke taped hair process tying ropes tighter. A.C.’s blindfolded; by rope He also was was tied attached his feet. hours, gagged glued his mouth shut. After few J.M.B. only go him if gag that he would let he removed the and told A.C. agreed. thereupon J.M.B. to cut off his hair. A.C. allowed off ripped part out hair in and cut the remainder with A.C.’s boy, ropes cut and drove the still scissors. J.M.B. then A.C.’s blindfolded, abandoned him. to a wooded area where he police by In a recounted to A.C.
The afore-cited facts were for the Parole Board psychological evaluation later conducted facts were essen- Psychologist, J.M.B. admitted those Clinical tially correct. *16 charged kidnapping J.M.B. with and Middlesex indictment
The pleaded guilty He aggravated respect assault in of this incident. 11,1982. charge February pled also to a criminal restraint He resulting from the incident with E.H. years. and of fifteen Both the A.C.-
J.M.B. received sentence judgments recommended that J.M.B. E.H.-related of conviction Department of Corrections’ Sex Offender serve his sentence County sentencing court described J.M.B.’s Unit. The Middlesex danger as “a to “depraved” as and described J.M.B. offenses expressed its society” “likely again.” offend The court who was law in at the time did that the sex offenders effect dissatisfaction not apply disappointment and its that J.M.B. would not to J.M.B. “the benefit of that treatment.” have later, eligible parole, for years in 1986when J.M.B. was
Five Diagnostic Avenel and Treatment Parole Board sent J.M.B. to the pathology of his and his for an assessment of the extent Center Witt, during with Dr. paroled. if It was his interview level of risk acknowledged Psychologist, that J.M.B. his the State’s Clinical male, pattern finding incapacitating an adolescent behavioral of him, engaging tying up, pulling him and out his hair. He denied victims, admitted that he found in overt sexual acts with his but sexually arousing. psychologist ultimately bondage their at risk to commit additional offenses concluded that J.M.B. was poor parole. and that he was a candidate 1989) (July 4. F.S.
F.S., man, twenty-year-old police that he and informed the engaging bondage period J.M.B. had been behavior over a of six July In a months when a final encounter occurred on 1989. him signed police, statement to the F.S. stated that J.M.B. drove planned. to J.M.B.’s house instead of F.S.’s worksite as J.M.B. up, including tying him then forced F.S. into the house and tied rope ceiling. hair to a affixed eventually collapsed ceiling F.S. when his hair loosened from the consciousness, rope. regained dragged After F.S. J.M.B. him again downstairs and cut some of his hair. J.M.B. threatened hang ceiling permit from the if he refused to to cut off F.S. hair. all F.S.’s J.M.B. then cut off the hair and drove him home. encounter, police police
After F.S. notified the about this They conducted a search of J.M.B.’s home and car. found stun acts, gun, photos teenage performing bondage males sexual paraphernalia, baggies, clumps hair tape fibers used duct tape. presentence that had hair stuck to the fibers J.M.B.’s investigation report states when arrested and at interviewed County Center, the Warren Correctional J.M.B. admitted that he F.S., gagged together, handcuffed tied his hands and feet ceiling tied him his hair to the beam. *17 first, only, charge
This incident lead to J.M.B.’s “sexually violent offense” as listed in the SVPA. J.M.B. was threats, restraint, possession indicted for criminal terroristic of a weapon purposes, kidnapping, aggravated for unlawful assault premised the criminal sexual criminal sexual contact. The State “attempt to commit an act of sexual charge on J.M.B.’s contact by using physical force or coercion for the contact with [F.S.] sexually gratifying purpose sexually arousing or himself and/or degrade [F.S.].”2 or humiliate restraint, 10,1991, January pleaded guilty to criminal On J.M.B. possession weapon pur- of a for unlawful terroristic threats and poses. charges All were dismissed. J.M.B. sentenced other year years, period with a two-and-one-half to a term of seven parole ineligibility. 1995) (July
5. S.S. on a following concerning this incident is based recitation victim, gave police.3 to the After J.M.B. statement that the S.S. S.S., fifteen-year-old who was on prison, from he met was released Program, program for troubled furlough Hope from Ranch unhappy Hope. at Ranch youth. J.M.B. that he was S.S. told away. away from encouraged to run While J.M.B. S.S. of his during furlough period, S.S. snuck out program another being Hope. to Ranch He called J.M.B. home to avoid returned complied and took S.S. to his asking picked up. to be J.M.B. Pennsylvania. residence exchange provided money with for the repeatedly S.S. occasion, penis up. him J.M.B. touched S.S.’s
chance to tie On one S.S., by According to each stopped told to do so S.S. but he when would in front of him and up, would tie him J.M.B. sit time J.M.B. bindings. police told try him S.S. also watch to remove touching private only in this record of J.M.B. F.S.’s We note that the mention n parts Psychiatric Assessment that was conducted in is found in the Clinical February psychiatrist’s report includes a statement that F.S. made to 2004. The tiy police describing [J.M.B.] [F.S.'s] used to to touch how "sometimes present private parts.” in the record before That statement F.S. is not itself investigation allegation presentence of this in the us nor can we find mention report. acknowledged veracity of S.S.’s statement. J.M.B. never *18 play bondage
that J.M.B. would a male video on the television attempted while he watched as S.S. to release himself from the restraints. S.S. also stated that J.M.B. threatened him if he said anyone. anything to custody
J.M.B. was indicted for interference with the of a 1996, person. February pleaded guilty committed he and was years probation. probation to sentenced five His was revoked 25,1999 on June his failure remain arrest-free. 3,1997) (April
6. W.S. 3, 1997, April charged On J.M.B. was arrested and with harass- ing nineteen-year-old police W.S. W.S. told the had he approximately known J.M.B. for three weeks when he went to the W.S., renting According room that J.M.B. was at the time. he was to be “initiated.” up put
W.S. sat in a chair while tape J.M.B. tied him and duct eyes. his stop attempted over W.S. asked J.M.B. to when he rag stuff a ignored taped wet W.S.’s mouth. J.M.B. W.S. and rag guided over his mouth and him to J.M.B.’s bed. With his bound, hands and feet still tape W.S. was able to remove the from eyes and mouth. He demanded to be untied and J.M.B. complied. restroom, Claiming that he needed to use the left W.S. the house. J.M.B. followed W.S. down the street in his car until finally agreed W.S. ear. enter the J.M.B. then drove him home. incident, When W.S. told his mother about the she contacted the police. police W.S.’s statement to the described the incident as above, further, adding, that at no time did J.M.B. touch him sexually. questioned by police,
When agreed with W.S.’s account, except to claim that compliant, W.S. was even when the rag put in charged was his mouth. J.M.B. was with harassment. charge downgraded municipal court to a violation of loitering pleaded the local guilty ordinance. J.M.B. and was fined. 9,1997) (September Illegal Handcuffs 7. stopped for a motor J.M.B.’s car was September
On plain pair of handcuffs The officer observed vehicle violation. *19 The arrested and his car in the car. J.M.B. was searched. view knot,” chains, pairs rope “hangman’s several police found with cutters, Vaseline, cuffs, tape, duet belts used for wire of thumb bondage, similar items. and other handcuffs, driving illegal possession of charged was with
J.M.B. vehicle, license, improper driving an uninsured suspended with a pleaded improper emissions. He tinting, window and vehicle charge, and was fined. guilty possession the of handcuffs A.V., 7,1999) (April J.R. 8. car when he was
During a of the trunk of J.M.B.’s search driving outstanding and for with an stopped on an traffic warrant license, depicting police photographs one hundred expired found young gagged. and The men were young men who were bound photographs Several arranged poses. in Some were blindfolded. photographs of taped to them. At least two the had locks of hair in penis proximity an erect close depicted appeared what to be young faces. the men’s warnings, rights his Miranda4 being given J.M.B. waived
After
took
police.
He admitted that he
provided a statement
the
young
in
that all the
men
the
photographs. He claimed
pictured
activities
willing participants
photographs were
photo
after he took the
photos.
further stated
J.M.B.
reading
go to
and masturbate while
graphs, he would
his bedroom
bondage
bondage.
that his
activities
involving
He admitted
books
however,
related,”
any
with
“sex involvement”
“sex
he denied
were
said that he did not have sex
photo participants because he
depicted in
“penis”
that the
young men. J.M.B. also said
with the
(1966).
S.Ct.
who up informed the that J.M.B. had tied them also. harassment, charged J.M.B. was with three counts of one count contempt, luring enticing and three counts of a child. He released bail on the condition that he have no contact with J.M.B., however, already the victims. telephoned had one (J.R.) boys jail proceeded from and he to call him several more *20 being times after released. J.M.B. also wrote to J.R. J.M.B. was again charged tampering arrested and with with a witness. Thereafter, October, 2001, photographs the that had been by police seized suppressed they the were ordered because had been seized without a warrant. photographs Because the had provided key the State with its evidence and that evidence now suppressed, only was tampering charge against the witness J.M.B. remained viable. The three counts of harassment and the three luring counts of enticing and a child were dismissed. J.M.B. pleaded guilty tampering to with a witness.6 He was sentenced to years imprisonment. five
J.M.B. was scheduled to prison be released from on that sen- when, on February January 22, 2004, tence or about the Attorney petition General filed the for his civil commitment. nature, proceeding Because the SVPA is civfi in civil commit- 5 J.M.B. claimed that it was a sexual device. actually phallus-shaped charge A related also was dismissed. contempt rule, exclusionary barred which use ment court held against criminal case photographs as evidence the State’s J.M.B., hearing. apply not in the civil commitment There- would fore, in the photographs could be used civil the court held that the by hearing. photographs presented were commitment The by considered the court. State and
B. hearing, presented State three At J.M.B.’s commitment Reeves, Benjamin Dr. L. experts. Zeiguer, Rusty Luis Dr. and Dr. No other witnesses testified. Liberatore. he testimony report pre- on the Zeiguer’s
Dr. based sixty-minute February, with pared following a interview follow-up prepare interview. order 2004. J.M.B. declined conclusions, explained he report Zeiguer Dr. used commonly independent upon psychiatrists for sources relied statements, evaluation, including: pre- victim’s purposes of an psycho- reports, prior forensic reports, investigation sentence logical psychiatric assessments. were sexual Zeiguer opined prior
Dr. that J.M.B.’s convictions with was done “non- crimes because J.M.B.’s “sexual sadism” young qualified as victims accord- partners.” eonsensual men they explicitly ing Zeiguer did not consent to Dr. because legal age give not of extent of J.M.B.’s conduct were and/or gave young men explained also that J.M.B. consent. He marijuana, “grooming which was a behavior” alcohol and “dampen their inhibitions.” R.J., Zeiguer discussing 1977 incident with Dr. testi-
When *21 fied that was J.M.B. having o[ve]r voluntary system on a total control muscular turned by through his offenses [T]his sexual element all of his involuntary persisted partner. ] has be him. [ by and we that the to system partner paralyzed see voluntary has to no control over his own muscular has to be awake but have partner element for sexual sadism, muscular becomes an erotic [T]he system. system muscular has a system very special quality.
voluntary Zeiguer pointed Dr. to the fact E.H. that the offenses with and place other, took within two each A.C. months of which showed urge strong J.M.B.’s so he took risks and used cunning Also, according in his methods access to victims. to Zeiguer, July Dr. the fact that J.M.B.’s offense was commit- parole ted while he was still for his two 1981 showed offenses deterred,” he cannot “that be that “he does not from learn sum, that, J.M.B., experience.” Zeiguer In Dr. to said the bond- activity age important, “is so this for him overpowering need is so willing put that he’s at stake his freedom.” J.M.B., Zeiguer opined Dr. by was affected sadism sexual (not personality specified) disorder N.O.S. otherwise with Zeiguer explained antisocial features. Dr. sexual sadism as “a non-consenting partners subjected recurrent behavior where are humiliating painful scary terrifying or or experiences.” or He opined further that because J.M.B. has suffered this from same old, years since diagnosis disorder he was twelve “the ... is extremely, extremely In respect personality severe.” disor- der, Zeiguer shallow, Dr. concluded that J.M.B. is callous and others, empathy lacks as persistent evidenced his violation people’s rights. impulsive, of other He also described J.M.B. as record, pointing despite around, to the fact J.M.B. drove stickers, without a once license once without insurance “in vehicles that an bondage equipment.” arsenal of contain[ed] Zeiguer
Dr. especially called J.M.B.’s combination of disorders formidable [blecause [that] have a you very very, powerful paraphilia be appeal's monopoliz- ing his life and then have where to you disorder violate other personality people’s
rights would not take much. Zeiguer’s opinion, Dr. pointed cannot be deterred. He the number of offenses which J.M.B. was and the involved fact that J.M.B.’s being behavior did not alter after placed on probation parole. Accordingly, posed he concluded that J.M.B. an “enormous” risk to re-offend in the foreseeable future unless he facility is confined to a secure for treatment. *22 testimony His testified for the State.
Dr. Reeves also following January, his prepared that report he had based preparing that of J.M.B. psychiatric forensic evaluation upon relied source material report, Dr. stated that he Reeves investigation reports, pre- commonly profession: police his used in prior He ex- psychological evaluations. reports, sentence necessary a use of such materials is because plained that “typically psychiatric in a evaluation person participating forensic distort Dr. Reeves stated great a lie or facts.” has motivation to previous made on statements J.M.B. that he also relied evaluators, those were made that because statements explaining had much less the SVPA before enactment now and his behav- than does to “distort arousals reason he iors.” demonstrating “sexu- J.M.B.’s behavior as
Dr. Reeves described broadly, sadism.” He bondage, and more sexual al arousal to to be offenses prior “[b]ecause offenses sexual considered J.M.B.’s humiliation of they bondage and involved the non-eonsensual bondage was for “this done victims” because [J.M.B.]’s arousal.” sexual [J.M.B.]’s many significant Dr. found it Zeiguer,
Like Dr. Reeves also occurred while he for which J.M.B. was convicted of the offenses offense, parole prior explaining was on recidivism and for that matter offenses in the literature on sexual it’s been shown general if is increased that person risk of future offenses person’s judicial has re-offended [J.M.B.] form of And while on some supervision. reoffends while under on more than one occasion supervision. significant petitioned the court for it that J.M.B. He also found young had men. photographs that he taken return this as Dr. Reeves described just is and his sexual [J.M.B.] how entrenched in his paraphilia further evidence of being now he’s ... under as scrutiny predator sadism he’s [photographs with] hair returned to him petitioning these locks of have ... judgment if It shows incredibly poor are of those same offenses.
which elements nothing being him in trying [J.M.B.], but that’s detained, stopped one is to avoid the past. Dr. Reeves further testified that he considered some J.M.B.’s *23 bondage practices “extremely dangerous.” particular, to be he during duct-taped discussed the incident which J.M.B. a young eyes shut, making young man’s and mouth it difficult for the man to breath or “communicate his distress” J.M.B. Zeiguer, “groom-
Like Dr. Dr. also Reeves considered J.M.B.’s ing” significant. Reeves, According behavior be to Dr. J.M.B. likely types was to continue to commit these of offenses because “nearly this conduct was J.M.B.’s exclusive sexual outlet.” When “innately” sexual, bondage asked whether is replied Dr. Reeves in the affirmative. Dr. that Reeves noted J.M.B. “denied that he had offense,” ever committed an actual sex and “claimed that persons bondage consented to and that motivation for his However, behavior not was sexual.” led to Dr. Reeves’s telling conclusion that J.M.B. was not the truth and that he lacked any for his remorse offenses. diagnosis
Dr. Zeiguer’s: Reeves’s of J.M.B. mirrored Dr. sexual personality Citing sadism and antisocial disorder. the definition of Diagnostic sexual sadism in contained and Statistical Manu- Disorders, (DSM-IV), al of Mental fourth edition Dr. Reeves concluded that met the definition because of the “consisten- cy acts”; persistency of “sexually his the fact he is by victims”; excited the total control has he over his bound “sexually the fact that he is excited the humiliation his victims endure he for example when cuts their hair and causes them fear goes them or beyond threatens their Concerning consent.” disorder, personality J.M.B.’s antisocial Dr. Reeves testified that general pervasive J.M.B. “shows disregard rights a for the of ahead, others” “impulsivity, plan as well as irritability failure to aggressiveness, others, disregard safety for the of consistent irresponsibility and lack of remorse.” Zeiguer, opined
As did Dr. Dr. Reeves that J.M.B.’s combined diagnosis sexual personality of sadism and antisocial disorder very likely makes him “you’re to recidivate combining because person generally who offending rights doesn’t care about by proscribed person explicitly aroused who is others with that J.M.B. will have Dr. Reeves concluded sexual behaviors.” difficulty controlling offending his behaviors.” “serious testify the State was Dr. expert The third witness May, Liberatore, his psychiatrist who testified about clinical J.M.B., per- which psychological risk assessment State Parole request formed at the of the release committee prior that he determined J.M.B.’s Board. Dr. Liberatore testified be, fact, actions were sex offenses because J.M.B.’s offenses gratification. Dr. Liberatore furtherance of his sexual taken in recurring having sadomasochistic that J.M.B. admitted to stated young ages of fifteen and involving males between the fantasies sexually gratified by bondage interac- twenty-two being and to he Dr. had *24 also told Liberatore tions with individuals. J.M.B. and, individuals fur- with one of the consensual sexual relations S.S., ther, the may contact” with that have been sexual “there escape fifteen-year-old helped Hope. from Ranch who J.M.B. that, by opined repeating similar offenses soon Dr. Liberatore prison, displayed repetitive, com- from J.M.B. after his release pattern of sexual arousal behav- pulsive, deviant and often violent again.” He that likely is on ... testified iors “that he to act and empathy towards his victims expressed no remorse J.M.B. also problematic. to be J.M.B. told not consider his actions did likely such behaviors after that he was to continue Dr. Liberatore prison. Lastly, Dr. Liberatore testified he was released from Static-99, and actuarial high on the MnSOST-R J.M.B. scored sexually assessing rate of for the recidivism tests used diagnosed with sexual sadism Dr. J.M.B. predators. Liberatore adults children.
C. commitment, the subject civil trial finding In J.M.B. “should of J.M.B.’s offenses specific findings that four court made 30:4-27.26(b)’s under N.J.S.A. violent” be considered definition. offense,
The court turned first to the details of J.M.B.’s first R.J., involving pleaded guilty threatening which he contributing kill delinquency to the on of minor. Based [J.M.B.], plea, by children, ages “[t]he the statement behavior, grooming that is the drugs, use of alcohol and the child bums, crying, rope acknowledgments derived [J.M.B.] crimes, sexual pleasure repeated from these [and] the acts over week,” the course of a trial court found that the offense should be considered sexual offense under SVPA. offense, trial also involving court found that J.M.B.’s third
A.C., place only involving which took a month after the offense E.H., should be considered a pleaded sexual offense. J.M.B. guilty aggravated kidnapping assault for the incident. holding, so placed significant emphasis the commitment court the fact that J.M.B. admitted to Dr. Witt that the commission these offenses him. aroused The court it also found “highly persuasive” sentencing that the court recommended that J.M.B. time serve his for this offense at the Sex Offenders Unit based on the information that sentencing court had before it. Finally, statement, the court relied on the victim’s which it found substantially by was corroborated police fruits of the officers’ home, vehicle, valid searches of J.M.B.’s and the crime scene. Moreover, admitted, being when evaluated the State’s Board, Clinical Psychologist for the Parole A.C.’s version transpired what essentially correct.
Next, the trial court found that J.M.B.’s conviction for criminal *25 restraint, possession terroristic threats and of weapon for the F.S., 1989, involving incident should also be considered a sexual offense. The trial court based this determination on “the nature acts,” “tying the fact that up young J.M.B. admits to men pleasure,” for sexual therapist prison J.M.B.’s claim that a told consenting him bondage partners, to find and J.M.B.’s statement sentencing at that his actions “really were sick and morbid.” Finally, the court also relied Dr. Zeiguer’s Reeves’s and Dr. expert testimony bondage that “nearly these are activities J.M.B.’s
593 an cutting hair is element of sexual outlet” “that exclusive special note of the fact The court took sexual sadism.” observations, making experts specific made reference to those particular this offense. that J.M.B.’s conviction for
Finally, the trial court concluded person, custody committed which arose interfering with the of a 1995, should also be S.S. in 1994 and from his involvement with finding on trial court based this considered sexual offense. The S.S.; S.S.’s claim that J.M.B. of times J.M.B. bound number picture took a penis; the fact that J.M.B. S.S.’s touched his buttocks; bondage S.S.’s that J.M.B. watched naked statement himself; attempt observing also S.S. to untie S.S. videos while and, “emotionally only fifteen fragile person;” an that S.S. was consent; therefore, bondage give that S.S. described the unable frightening; grooming that J.M.B. was S.S. as encounters Liberatore, Dr. and to money; J.M.B.’s admission to giving him type from this gratification he sexual experts, other obtained “por- fact bondage activity; finally, on the that J.M.B. help poor tray[ed] do-gooder unfortu- trie[d] himself as who found, which, “has that J.M.B. no boys,” nate court showed insight into his behavior.” whatsoever to conclude that
The trial court found insufficient evidence be involving E.H. and should considered J.M.B.’s offenses J.R. sexually violent offenses.
D. noted, Appellate the trial court’s As Division affirmed commitment under the qualified for civil determination that J.M.B. J.M.B., A.2d N.J.Super. 928 In re SVPA. Commitment of agreed underlying panel that J.M.B.’s (App.Div.2007). The court offenses. should be considered offenses kill, kidnapping, for threats to “convictions reasoned J.M.B.’s restraint, assault, terroristic threats are aggravated criminal panel clearly Id. A.2d 102. The violent offenses.” at all surrounding and circumstances found that “the facts *26 594 speak
[J.M.B.’s] convictions contain elements of and violence loudly compulsion. Binding, of sexual gagging, blindfolding and young these males was intended to humiliate them J.M.B.’s for gratification.” concluded, sexual Ibid. The court knowing of the use threats of lack force, coercion, consent, of physical harm, underage grooming drugs and with victims, them alcohol to exploitation gratification J.M.B.’s sexual satisfy compulsive sufficient circumstances presents finding court’s] [the trial that J.M.B.’s offenses were “sexually offenses” (b) Of N.J.S.A 30:4-27.26. under subsection [Id. 102.] 92, at 928 A.2d holding, Appellate rejected so Division hearsay J.M.B.’s
arguments.
93-97,
at
Id.
Before this
essentially
advance
the same
arguments
presented
Appellate
as those
to the
Division.
rejected
Division
J.M.B.’s
Appellate
contention
trial court used
reaching
Id. at
findings.
evaluations
an
prior
96,
manner
its
improper
rv. (b)’s for a interpretation of subsection standard on our Based offense, namely requires it a finding of by captured substantially equivalent conduct to the conduct 576-79, (a), supra at 964 A.2d at in see offenses listed subsection 760-62, concluding J.M.B.’s offense difficulty no we have offense, and Based on that respect of A.C. meets definition. alone, Appellate judgment can affirm the of that offense we Division, commitment entered which affirmed the order of civil the fact commitment court. In addition to against J.M.B. many shared during conduct the incident with A.C. that J.M.B.’s (a) of offense kid- of the subsection characteristics elements of of violent and sexual nature J.M.B.’s napping, the evidence overwhelming. also was conduct towards A.C. (a) require
Although many of the offenses listed subsection body usually associ- private parts or “touching penetrating J.M.B., offenses,” of them argued by as not all do. sex ated with assault, contact, assault, criminal sexual Aggravated sexual sexual require “sexual contact do either aggravated criminal sexual 2C:14-2, N.J.S.A. “sexual contact.” See N.J.S.A. penetration” or (b). 2C:14-3(a), Likewise, felony a murder to constitute (a) offense, must be sexual as- underlying crime subsection pen- sault, 2C:ll-3(a)(3), which, again, requires “sexual N.J.S.A. (a), However, under subsection or contact.” etration” “sexual necessarily “touching penetrating or require kidnapping does not If body usually parts associated with sex offenses.” private of old, years kidnapping constitutes is than the victim less sixteen to, (a) subjected permit- is the victim or offense when subsection in, N.J.S.A. 2C:13- engage “prohibited sexual act.”8 See ted to N.J.S.A. 2C:24-4(b)(1) as sexual act” defines "Prohibited (a) intercourse; or Sexual (b) intercourse; Anal or (c) Masturbation; or (d) or Bestiality; (e) Sadism; or
1(c)(2)(b)(defining kidnapping under which circumstances consti- degree). “prohibited tutes crime is of first “Sadism” one (a) acts” that kidnapping sexual renders of minor a subsection 2C:13-l(c)(2)(b), 2C:24-4(b)(l)(e). offense. See N.J.S.A N.J.S.A Dictionary Webster’s defines “sadism” as the “derivation of sexual pain from infliction satisfaction others.” Webster’s II New ed.2005). (3d College Dictionary Similarly, Dr. Reeves testi- “persistent fied that the DSM-IV defines “sexual sadism” as fantasies, sexually arousing urges intense or involving behaviors psychological physical suffering including real acts which the exciting person. humiliation the victim is to a And urges, these fantasies and behaviors cause or impair- distress *28 ment.” unconscious;
J.M.B. admitted that he knocked A.C. kidnapped him; house; him; took A.C. back to his blindfolded tied his hands feet; together; taped and gagged feet his hair and it tied shut; glued ripped A.C.’s mouth and cut out hair. A.C.’s subjected The conduct to which J.M.B. A.C. was of some J.M.B.’s Likewise, most violent. sexual of nature J.M.B.’s with actions J.M.B., A.C. bondage is undeniable. described his as activities police, doctors, “sex related.” He admitted to the and to his he gratification bondage received sexual from his All activities. testified, experts detail, three State’s as to the of sexual nature bondage J.M.B.’s activities.
Finally,
is significant
sentencing
it
when
A.C.,
for his offenses concerning
sentencing
court recom
mended
J.M.B. serve his time at the Sex Offenders Unit.
Clearly,
“apprised
degree
J.M.B. was
with a reasonable
of certain
Lee,
156, 166,
ty,”
(1984),
State v.
96 N.J.
reports, presentence
prior
"both to consider
to determine whether J.M.B. committed
circumstances of the offenses
30:4-27.26(b),
meaning
and to
'sexually
of N.J.S.A.
violent offense’ within the
experts
opinions
testifying
who
these documents
considered
evaluate the
J.M.B.,
Super.
diagnoses.”
supra,
I.
reaching
395 N.
In Commitment
their
re
respect
assessment of
102.
of the commitment court's
at
928 A.2d
determining
purposes
it
whether
constituted
conduct for
J.M.B.’s
*29
encompassed
substantially equivalent to the conduct
in subsec
violent offense
offenses,
(a)'s
agree
use
statements as
we
that the court could
J.M.B.’s
tion
listed
94,
(citing
party.
id.
A.2d 102
properly
of
See
at
928
admitted statements
469,
M.L.V.,
454,
803(b)(1);
N.J.Super.
909
In re Commitment
388
N.J.R.E.
of
denied,
255,
(2007)).
(App.Div.2006),
N.J.
V.
closing,
Before
note that
we
J.M.B. advanced before
Court,
below,
this
as he did
several constitutional claims. Those
for, consistently,
addressing
issues merit attention
applica
when
SVPA,
emphasized
tion of the
have
we
commitment
“[c]ivil
any purpose
significant
deprivation
liberty
constitutes a
of
”
W.Z.,
requires
In re Commitment of
process protection.’
due
Texas,
125,
(quoting Addington
N.J.
v.
supra, 173
at
A.
First, J.M.B. advanced a claim that the definition of a
(b)
sexually violent offense contained in subsection
rendered
sixteen,
being
age
clearly
stances
but for A.C.
a few
over
months
of
(a) predicate
would have been a subsection
based
offense
on
own
J.M.B.'s
doctors,
police,
plea
statements
and in connection
with
sentencing
kidnapping
for his
conviction.
respect
findings
In
of the commitment court’s
about J.M.B.’s current mental
inability
adequately
condition and whether he had a demonstrated
control his
conduct,
sexually harmful
we
likewise affirm
trial court’s reliance
experts’ opinions,
array
which were based on a broad
of evidence about J.M.B.
specifically
Appellate
holding
We
endorse the
Division's
that the mental health
experts
presentence reports
“they
type
could use
because
are the
of evidence
reasonably
psychiatrists
formulating
opinion
relied on
an
toas
an individu
J.M.B.,
supra,
al's mental
N.J.Super.
condition.’’ In re Commitment
395
at
of
A.E.F.,
473, 490-93,
(citing
928 A.2d
N.J.Super.
102
In re Commitment
377
denied,
(App.Div.),
(2005);
599
Vague
statutes violate
unconstitutionally vague.
criminal
SVPA
notify
public that
they
process because
fail warn
due
liability.
carry
quasi-criminal”
could
“criminal or
certain conduct
(1997)
564, 581,
(citing
Hoffman,
N.J.
600 State, According workable standard. to the the offenses under (a) “force, coercion, subsection common share characteristics victimization, perpetrator’s gratification, placing sexual victim fear, threats, physical suffering, grooming, luring and mental money, drugs, offending against victims with alcohol or vic- tims who either or will not cannot consent to the behavior.” Certainly, leading J.M.B.’s conduct his convictions kidnapping aggravated assault of A.C. shared characteristics (a). kidnapping specifically the offense of listed in subsection convincingly J.M.B. cannot claim that he lacked notice that he was consequences vulnerable to past the SVPA’s when he had substantially conviction for as same conduct would constitute Legislature a sexually crime defined as violent offense (a).10 sum, In under subsection we conclude that J.M.B. had might notice that his conduct result commitment under the SVPA.
B. J.M.B. further contends that the commitment court’s sub (b) findings scope section involuntary so extended the commit ment under the SVPA that the statute must be puni considered and, therefore, tive guarantees violative of the constitutional against post ex facto jeopardy. laws and double He relies on Kennedy’s Hendricks, Justice concurrence in Kansas v. 521 U.S. 346, 371-73, 2072, 2087, (1997) 501, 117 S.Ct. 138 L.Ed.2d 521-22 J., (Kennedy, concurring), argue the SVPA must have precision” “definitional to maintain civil its nature. J.M.B. main (b) application tains that prior of subsection to his offenses de stroys precision,” rendering statute’s “definitional it a mere general “‘mechanism for retribution (quoting deterrence.’” 10 out, noting, points It bears as State record at the commitment hearing specific bondage demonstrated that J.M.B. notice that his 1981, prison therapist were activities sexual in nature. In told as him much against engaging non-consenting and advised him ever in such behavior awith partner.
601 373, 2087, L.Ed.2d Hendricks, at at 117 S.Ct. supra, 521 U.S. J., concurring)). (Kennedy, at 205, 133-34, W.Z., A.2d Court, at supra, 173 N.J.
This general claim that it was against a already upheld the has SVPA jeopardy post facto and double on ex based unconstitutional at 835 A.2d Bellamy, supra, 178 N.J. considerations. and not SVPA is remedial our that the we underscored view against Moreover, Megan’s Law constitu in upholding punitive. *32 remedial, that non- implicitly held objections, this Court tional jeopardy post facto or double not constitute ex statutes do punitive 10, 46, 12, Poritz, n. 662 42 n. 142 N.J. Doe v. violations. specific (1995). said, and in to this new response that All A.2d (b) definition challenge at the subsection that levels SVPA’s J.M.B. interpretation of offense, our we conclude that sexually aof violent underlying definition, conduct application its to J.M.B.’s that A.C., argu this renders aggravated kidnapping and assault the interpreted, we hold that SVPA’s As without merit. ment (b), in contained subsection sexually violent offense definition J.M.B. to not cause precision and does not lack definitional does jeopardy or violation. any post ex facto double suffer V. is affirmed. judgment Appellate the Division The ALBIN, dissenting. Justice Act Sexually Predator Jersey Violent passing New the provided -27.38, Legislature
(SVPA), the N.J.S.A 30:4-27.24 protection of the powerful tool for Attorney General with a however, safeguards procedural inserted Legislature, public. The for its misuse. Under potential to minimize the Act “sexually a SVPA, involuntarily committed as may be a showing he committed a that if there is predator” violent showing a clear is offense” and there “sexually violent abnormality or mental that “suffers from a convincing evidence he likely engage in acts of that makes personality [him] disorder control, facility sexual if not a violence confined in secure care 30:4-27.32(a). 30:4-27.26; and treatment.” N.J.S.A. N.J.S.A. generally I majority’s approach concur in the measured construing agree, however, reach I cannot SVPA. Legislature proof beyond intended a standard other than sexually offense, reasonable doubt establish which triggers potential involuntary for life-time commitment. For reason, part majority. I must from the key issue this case is J.M.B. was of a whether convicted sexually ease, purposes violent offense. For of this the SVPA provides two establishing avenues for violent offense. Attorney One avenue is for the General show that J.M.B. was committing attempting convicted of to commit such crimes as assault, aggravated assault, aggravated sexual sexual criminal contact, certain kidnapping, felony sexual kinds of murder involving 30:4-27.26(a). sexual assault. See N.J.S.A No one disputes any that a conviction of of those enumerated proven beyond violent offenses must be a reasonable doubt. The other avenue is for Attorney General to establish “any J.M.B. committed offense for which the court makes a specific finding on the record on the based circumstances of *33 ease, person’s the the sexually offense should be a considered 30:4r-27.26(b). violent offense.” N.J.S.A category, In this the majority essentially long contends that so as there ais conviction offense, beyond doubt, anof may a reasonable then the court finding by make a convincing clear and person’s evidence that “the offense,” offense should sexually be considered a violent N.J.S.A. 30:4-27.26(b). conclude,
I particularly given cannot liberty the interests at stake, Legislature that the illogical dichotomy has an endorsed proof the burden of statutory between the categories. two Ac- cording majority, crimes, category, to the in the first the which are clearly distinguishable offenses, proven as sexual beyond must be trigger a reasonable doubt to the category, SVPA. In the second person if a commits a crime that is not an enumerated sexual offense, designate the offense as is allowed then court SVPA, and sexual, by showing of clear a purposes sug- wording of the statute convincing Nothing in the evidence. result in mind. gests Legislature asymmetrical had that that the Legislature indicates only in the statute where the place convincing applies is where and evidence standard that the clear has person, who commit- Attorney General must show offense, involuntary com- sexually violent “needs continued a ted 30:4-27.32(a). N.J.S.A. sexually predator,” a violent mitment as involuntary commit- person “needs continued To determine convincing finding by necessarily requires clear ment” — abnormality personal- he from a mental “suffers evidence—that likely repeat that makes him be ity disorder” facility.” [rehabilitative] in a secure offender unless “confined 30:4-27.26. N.J.S.A. Legislature have intended I that the must
Accordingly, believe is “specific finding” that a non-enumerated offense that the court’s proven beyond a reasonable fact a violent offense be the most sense when interpretation an that makes doubt. That is an It is also viewing, parts all the of the SVPA. harmony, believe, ap- consonant with interpretation I would be Therefore, I majority. would reverse proach taken trial this matter court Division and remand Appellate has Attorney General finding” “specific make a whether “beyond proving a reasonable doubt” burden of satisfied the under sexually violent offense underlying offense is a J.M.B.’s 30:4-27.26(b). N.J.S.A. respectfully
I therefore dissent. joins opinion. in this Justice WALLACE LONG, Justices Justice RABNER and For affirmance —Chief LaVECCHIA, RIVERA-SOTO HOENS-5. ALBIN WALLACE-2.
For reversal —Justices