State v. Gibson
| Decision Date | 12 May 1977 |
| Citation | 375 A.2d 1191,150 N.J.Super. 351 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Frederick GIBSON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Mark H. Friedman, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).
Philip B. Whitcomb, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).
Before Judges BISCHOFF, MORGAN and KING.
At issue on this appeal are problems related to sentencing for a series of offenses, some covered and some uncovered by the Sex Offender Act, N.J.S.A. 2A:164-3 et seq. Also presented for consideration are defendant's contentions that several of the admittedly covered offenses merge for purpose of sentencing.
Defendant pleaded guilty, pursuant to plea bargain, to the following counts of the following indictments:
Indictment 1547-74
(1) Rape (count 3)
(2) while armed (count 4)
(3) breaking and entry with intent to rape (count 5).
(1) Impairing the morals of a minor (count 1)
(2) breaking and entry with intent to commit carnal abuse (count 4)
(3) assault with intent to commit carnal abuse (count 5)
(4) private lewdness (count 6).
(1) Breaking and entry with intent to commit rape (count 1)
(2) assault with intent to commit rape (count 2)
(3) private lewdness (count 3).
In exchange for the foregoing pleas the State recommended that the other counts contained in the three indictments be dismissed.
Since several of the charges to which defendant pleaded guilty came within the purview of the Sex Offender Act, defendant was sent to the Adult Diagnostic and Treatment Center at Avenel for evaluation. The ensuing report classified him as a compulsive and repetitive sex offender and recommended his commitment to a prescribed institution for treatment. Defendant does not contest the validity of these findings.
Defendant was thereafter sentenced, in accordance with N.J.S.A. 2A:164-6(b), to indeterminate terms at the Diagnostic Unit, New Jersey State Prison at Rahway, on each of the counts to which he had entered a guilty plea. These sentences were made to run consecutively for the most part "so that the maximum period of treatment may be afforded (defendant), if necessary." The only exceptions to the consecutive nature of the sentences were those imposed for the two convictions for private lewdness which were made to run concurrently with those imposed for assault with intent to commit carnal abuse and assault with intent to commit rape, respectively.
About a week later defendant was recalled for resentencing. At that time the trial judge vacated the indeterminate sentences for the three counts charging defendant with breaking and entry because those offenses were not listed in the Sex Offender Act. He then imposed concurrent 5-7-year State Prison terms for those offenses, consecutive, however, to defendant's indeterminate terms at the Diagnostic Unit. In imposing those consecutive terms the judge stated that he believed defendant should pay a penalty for the noncovered offenses and that "if a minimum period of treatment is all that is required, I want him to be eligible for a period of incarceration, and I believe appropriately that it should be in the State Prison."
In his first point of argument defendant challenges the propriety of the consecutive State Prison terms imposed with respect to the noncovered offenses. He contends that although the three breaking and entry offenses do not fall within the scope of the Sex Offender Act, they were nevertheless motivated by the same anti-social impulses which caused him to commit the covered offenses for which he will be receiving treatment. The record of defendant's pleas fully supports his contention that the motivation for the breaking and entries was sexual in nature. The State does not seriously contend otherwise.
The purpose of the Sex Offender Act and its effect on the propriety of sentences consecutive to commitment for treatment thereunder for noncovered offenses stemming from sexually aberrant impulses has been explored at length in State v. Clark, 65 N.J. 426, 323 A.2d 470 (1974), and need not be repeated here. Clark mandates vacation of the consecutive terms imposed; the State Prison terms imposed shall, instead, be served concurrently with his commitment for treatment under the Sex Offender Act.
Defendant next contends that he was illegally sentenced under the Sex Offender Act for being armed while committing rape, since that offense is not a listed one under that act. Instead, he suggests a concurrent term or a suspended sentence for this offense. This contention is without merit.
Although being armed in the commission of a covered offense is not itself listed as a covered offense within the scope of the Sex Offender Act, defendant overlooks that "being armed" while in the commission of the offenses enumerated in N.J.S.A. 2A:151-5 is not regarded as an independent substantive offense but merely provides the means for enhancing the punishment for the offenses specified therein when committed while armed. State v. Quinones, 140 N.J.Super. 237, 241, 356 A.2d 29 (App.Div.1976); State v. La Vera, 35 N.J.Super. 256, 258, 113 A.2d 829 (App.Div.), cert. den. 350 U.S. 853, 76 S.Ct. 95, 100 L.Ed. 758 (1955). Hence, there was no need to specify this condition for enhancement of punishment in the list of substantive crimes which the Legislature wished to be covered in the Sex Offender Act. The omission of the armed commission of covered offenses should not, therefore, be taken as indicative of the Legislature's intent to exclude such an incident of the covered crime from the scope of the Sex Offender Act.
The aims of that act and the "while armed" statute are not incompatible. That an offense covered by the Sex Offender Act is committed by one who is armed does not remove the offense from coverage of the Act. Its continued coverage embraces as well the aggravated circumstances of its commission and the increased sentence authorized by N.J.S.A. 2A:151-5 can most appropriately be served at the Diagnostic Unit where treatment for the offense, in light of all the circumstances of its commission, can best be administered. The fact that a defendant was armed may suggest the necessity for a longer period in which to treat the disorder which impelled commission of the covered offense because the potential violence threatened by the armed commission of the covered offense enhanced the degree of danger to the public. The two offenses, inextricably connected, should be viewed as one for purposes of the therapy to be applied. No purpose would be served in imposing a nontherapeutic sentence for the aggravated circumstances in which a covered offense has been committed. The challenged sentence will not extend defendant's commitment beyond the necessities of the required...
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...of the indictment should be merged into the first count and the convictions on counts two and three vacated. State v. Gibson, 150 N.J.Super. 351, 375 A.2d 1191 (App.Div. 1977). Defendant also seeks relief by way of an order for a new trial pursuant to R. Among the grounds advanced are that ......
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