Opinion
DOCKET NO. A-4865-11T2
06-11-2014
IN THE MATTER OF THE CIVIL COMMITMENT OF J.Z., SVP-342-03.
Alan Dexter Bowman, attorney for appellant J.Z. John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, St. John and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-342-03.
Alan Dexter Bowman, attorney for appellant J.Z.
John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief). PER CURIAM
J.Z. has been civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and confined in the Special Treatment Unit (STU) for control, care and treatment. He appeals from an order entered by the Law Division on April 20, 2012, which authorized his release from the STU so he could begin serving a sentence in a State correctional facility. For the reasons that follow, the appeal is dismissed.
J.Z. has been committed pursuant to the SVPA since October 2003. He appealed from an order entered by the trial court on June 2, 2005 continuing his commitment. We affirmed that order. In re Civil Commitment of J.Z., SVP 342-03, No. A-6029-04 (App. Div. Apr. 18, 2007). J.Z.'s civil commitment was continued by order entered by the trial court on December 15, 2010, following a review hearing, in which J.Z. stipulated that the State had established by clear and convincing evidence that he remained a sexually violent predator in need of involuntary commitment under the SVPA.
On March 23, 2012, J.Z. pled guilty to possession of an electronic communication device in a correctional facility, contrary to N.J.S.A. 2C:29-10(b), based on his possession of a computer with Internet access while confined in the STU. The trial court sentenced J.Z. to four years of incarceration, with a two-year period of parole ineligibility. J.Z. thereafter appealed from the judgment of conviction.
On April 20, 2012, J.Z. made an application in the SVPA matter to vacate the civil commitment order without prejudice upon his transfer to a prison to serve the criminal sentence. The judge denied the motion, noting on the record that continuation of the commitment order was not inconsistent with the provision of the SVPA, which requires that persons committed pursuant to the SVPA be housed by the Department of Corrections (DOC) in a safe and secure facility "separately from other offenders in the custody of the [DOC]." N.J.S.A. 30:4-27.34(a).
The judge stated that J.Z. would be intermingled with other prisoners while he was serving his criminal sentence, but this was the result of his status as a person convicted of a criminal offense, not the result of his status as a person civilly committed pursuant to the SVPA. The judge indicated that, upon the completion of his prison sentence, J.Z. would be afforded a review hearing, within twenty days, to determine if he was "still committable" under the SVPA.
The judge accordingly entered an order dated April 20, 2012, releasing J.Z. to the custody of the DOC so that he could begin serving the criminal sentence. The order further provided that, upon the conclusion of the criminal sentence, the DOC shall return J.Z. to the STU.
Defendant appeals from the trial court's April 20, 2012 order and argues that the judge should have vacated the civil commitment order without prejudice. J.Z. contends that his transfer from the STU to general population of a prison "nullifies" the court's civil commitment order.
In response, the State requests that the matter be remanded to the trial court so that the commitment order can be modified. The State asserts that, "upon further reflection," it believes it would be inconsistent with the SVPA to continue J.Z.'s commitment while he is serving his criminal sentence.
In an opinion also filed this date, we have determined that the STU is not a correctional facility to which N.J.S.A. 2C:29-10(b) applies, and therefore J.Z.'s plea to that charge and the conviction based on that plea must be set aside. State v. J.Z., No. A-4480-11 (App. Div. 2014) (slip op. at 8). Therefore, the issue of whether the trial court should have vacated the civil commitment order without prejudice to its reinstatement following the completion of defendant's criminal sentence on the N.J.S.A. 2C:29-10(b) charge is moot.
Appeal dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION