Gerald v. Commissioner, New Jersey Dept. of Corrections

• Decision Date: 16 May 1985
• Parties: Raymond GERALD, Petitioner-Appellant, v. COMMISSIONER, NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 438

201 N.J.Super. 438

493 A.2d 556

Raymond GERALD, Petitioner-Appellant, v. COMMISSIONER, NEW JERSEY DEPARTMENT OF CORRECTIONS Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted April 23, 1985.

Decided May 16, 1985.

Joseph H. Rodriguez, Public Defender, for petitioner-appellant (John M. Cannel, Asst. Public Defender, of counsel and on the brief; Leigh B. Bienen, Asst. Deputy Public Defender, on the brief).

Raymond Gerald filed a letter brief and supplemental letter brief pro se.

Irwin I. Kimmelman, Atty. Gen. of New Jersey, for respondent-respondent (Jeffrey A. Bartolino, Deputy Atty. Gen., on the letter brief).

Before Judges PRESSLER, BRODY and COHEN.

PER CURIAM.

This appeal requires us to reconsider the question of the parole eligibility of a defendant who was sentenced to an indeterminate term under the former New Jersey Sex Offender Act, N.J.S.A. 2A:164-3, et seq. (repealed in 1978 by N.J.S.A. 2C:98-2), and who was thereafter transferred from the Adult Diagnostic and Treatment Center (ADTC) to the general prison population. We disagree with the conclusion reached by State v. Smith, 190 N.J.Super. 21, 461 A.2d 1177 (App.Div.1982), and hold that the parole status of such a defendant must be the same as that of a sex offender sentenced under N.J.S.A. 2C:47-1, et seq.

The facts are essentially undisputed. In 1966 defendant Raymond Gerald pleaded guilty to an accusation charging him with sodomy and impairing the morals of a minor in violation of former N.J.S.A. 2A:143-2 and 2A:96-3, respectively. Pursuant to former N.J.S.A. 2A:164-3 he was committed to the Diagnostic Center, the predecessor of ADTC, for a physical and psychiatric evaluation, as a result of which the diagnostic unit found him eligible for treatment as a sex offender and recommended his commitment for specialized treatment. See former N.J.S.A 2A:164-5 and 6(b). The trial judge sentenced defendant to an indeterminate term, subject to a 30-year maximum, at the diagnostic unit.

The Code became effective on September 1, 1979. In August 1980 defendant moved for resentencing pursuant to N.J.S.A. 2C:1-1(d)(2). The Resentencing Panel concluded that defendant had demonstrated the requisite disparity for relief but that he had failed to demonstrate good cause therefor. We affirmed the Panel's denial of relief, noting that defendant had not responded to therapeutic treatment. See State v. Gerald, A-636-80T4 (decided March 17, 1982).

In affirming the Resentencing Panel's denial of relief, the court was evidently unaware that during the pendency of his appeal from its decision, he was transferred by ADTC to Rahway State Prison. This transfer took place in October 1981, nearly 15 years after his original commitment. The reason for the transfer is explained in the November 1981 report of the Special Classification Review Board, which stated that it had been

* * * effected due to Mr. Gerald's long standing lack of participation in the therapeutic program. Despite repeated and varied attempts at motivating him Mr. Gerald just could not profit from being housed in the ADTC. He continues to be viewed as a threat to society and as such continued confinement is recommended.

Defendant has been evaluated by the Special Classification Review Board at 6-month intervals since his transfer. The last of these, dated June 15, 1984 and constituting the 32nd consideration of defendant's status, recommends continued confinement. It explains that

Mr. Gerald was transferred to SPR [State Prison of Rahway] on October 6, 1981 due to continued non-participation in therapy, as well as indications that he is comfortable in an institutional setting and does not want to make progress.

Mr. Gerald continues to refuse to attend the SPR group, to be interviewed or to have his six month review. He remains bitter, angry and resentful.

Due to lack of attendance in group and refusal to be interviewed, no evaluation can be made and further retention must be necessarily recommended.

Defendant appeals from this report and recommendation claiming that as a result of his transfer from ADTC to Rahway State Prison, the question of his continued confinement is properly within the direct jurisdiction of the Parole Board pursuant to N.J.S.A. 30:4-123.51(a) rather than the initial jurisdiction of the Special Classification Review Board pursuant to N.J.S.A. 30:4-123.51(e). We find substantial merit in this contention.

The scheme for disposition of compulsive and repetitive sex offenders provided for by the former Sex Offender Act was substantially altered by the Code, which added a punitive component to the original exclusively rehabilitative and treatment purposes of sentencing. State v. Chapman, 95 N.J. 582, 591-592, 472 A.2d 559 (1984). Under the former Act, the sentence was required to be indeterminate subject to a maximum term not exceeding the maximum sentence imposable for the crime. No minimum term, however, could be fixed, and the defendant was entitled to release as soon as the Special Classification Review Board concluded that he would be able to make "an acceptable social adjustment in the community." See former N.J.S.A. 2A:164-6 and 8. Nor were the treatment and rehabilitative purposes of the sex offender's sentence altered or affected by ADTC's inability to meet these objectives at the diagnostic facility. Thus, while a defendant could be transferred from the diagnostic facility to the general prison population pursuant to the Commissioner's discretionary power afforded by former N.J.S.A. 2A:164-7, ADTC was nevertheless obliged to provide him with treatment for his psychiatric problems in whatever institution he was transferred to. See State v. Harvey, 162 N.J.Super. 386, 392 A.2d 1248 (Law Div.1978), aff'd 170 N.J.Super. 391, 406 A.2d 724 (App.Div.1979). And see State v. Wingler, 25 N.J. 161, 135 A.2d 468 (1957); State v. Newton, 17 N.J. 271, 111 A.2d 272 (1955); Tully v. Tramburg, 57 N.J.Super. 377, 154 A.2d 840 (App.Div.1959). In short, a defendant sentenced as a sex offender remained confined as a sex offender and subject to the conditions of confinement as a sex offender during the entire period of his imprisonment irrespective of his actual amenability to treatment and the institution in which he was confined. One of these conditions was the continued exercise by the Special Classification Review Board of its parole recommendation authority in accordance with a psychiatrically oriented release standard.

Chapter 47 of the Code rejected the premise of the original act that a defendant's sex offender status remains inalterable during the period of confinement. The scheme of the Code in respect of defendants sentenced to ADTC as sex offenders is to require that a fixed term consistent with the sentencing provisions of Chapters 43 and 44 of the Code be imposed rather than the former indeterminate sentence. N.J.S.A. 2C:47-3(b). And see State v. Chapman, 95 N.J. 582, 472 A.2d 559 (1984). As long as a sex offender sentenced under Chapter 47 remains confined at ADTC, his situation is substantially the same as a defendant sentenced under the former act except that his maximum period of confinement is determined by the actual fixed term imposed rather than the maximum allowable for the crime. And, unless a period of parole ineligibility has been imposed as part of the fixed term pursuant to N.J.S.A. 2C:14-6 or 2C:43-6(b), the defendant may be released from his ADTC confinement by the Parole Board only on a recommendation by the Special Classification Review Board that he is "capable of making an acceptable social adjustment in the community," the same standard prescribed by the original act. N.J.S.A. 2C:47-5; N.J.S.A. 30:4-123.51(e). See also State v. Chapman, supra.

The Code, however, unlike the former Act, recognizes that not every sex offender sentenced to ADTC can or will respond affirmatively to treatment. Whereas former N.J.S.A. 2A:164-7 required a sex offender to be accorded treatment in whichever institution in which he was confined, N.J.S.A. 2C:47-4(a) requires the provision of treatment only in ADTC. If ADTC treatment cannot be effectively rendered, then the rehabilitative purpose of sex offender sentencing is deemed to have failed. In that case, N.J.S.A. 2C:47-4(b) authorizes defendant's transfer out of ADTC to another institution. The express consequence of this transfer is the termination of defendant's sex offender status for purposes of determining the conditions of his confinement and release. He is no longer required to be afforded treatment, the particular treatment expertise of the Special Classification Review Board becomes irrelevant, the primary purpose of the remaining sentence is punitive, and defendant's parole eligibility is governed by N.J.S.A. 30:4-123.51(a) in the same manner as if he had originally been sentenced to a regular prison facility for the fixed term originally imposed. See McCray v. Dietz, 517 F.Supp. 787 (D.N.J.1980), in which Chief Judge Fisher so held on the ground that

The New Jersey statute, N.J.S.A. 2C:47-4(b), is not unclear or subject to a narrowing interpretation by the state court. That statute specifically states that

[t]he commissioner may, in his discretion, order the transfer of a person sentenced under this chapter out of the Adult Diagnostic and Treatment Center. In the event of such a transfer, the conditions of confinement and release of such person transferred shall no longer be governed by this chapter. (emphasis added)

It is apparent that this section intends to apply the usual parole guidelines ( N.J.S.A. 30:4-123.51 et seq.) rather than ADTC guidelines ( N.J.S.A. 2C:47-5) for inmates transferred out of ADTC. The statute is clear and, consequently, I will decide the due-process claim. [Id. at 790]

McCray involved the claim of a prisoner resentenced under Chapter 47 of the Code. As to such a transferee, there can be no question that the parole eligibility provisions...