State v. Mickschutz
| Decision Date | 18 June 1968 |
| Docket Number | No. A--716--67,A--716--67 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Dennis P. MICKSCHUTZ, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Miriam N. Span, Asst. Deputy Public Defender, for defendant-appellant (Peter Murray, Public Defender, attorney).
Martin J. Queenan, Burlington County Prosecutor, for plaintiff-respondent (Myron H. Gottlieb, Bordentown, on the brief).
Eugene T. Urbaniak, Deputy Atty. Gen., appeared for Dept. of Institutions and Agencies (Arthur J. Sills, Atty. Gen., attorney).
Before Judges GAULKIN, LEWIS and KOLOVSKY.
The opinion of the court was delivered by
GAULKIN, S.J.A.D.
Defendant pleaded guilty to three accusations, each of which charged him with impairing the morals of a different minor girl in violation of N.J.S. 2A:96--3, N.J.S.A. Pursuant to N.J.S. 2A:164--3 et seq., N.J.S.A., he was committed to the Diagnostic Center for examination. The Center repeated that defendant 'falls within the purview of N.J.S. 2A:164--5 (N.J.S.A.) of the Sex Offender Act requiring a program of specialized treatment,' and recommended (with some qualification) that he 'be placed on probation, (N.J.S. 2A:164--6(a) (N.J.S.A.)).' N.J.S. 2A:164--6, N.J.S.A. provides:
'The disposition to be made by the court of such person, upon written report and recommendation of the diagnostic center, shall include 1 or more of the following measures:
a. The court may place such person on probation with the requirement, as a condition of said probation, that he receive out-patient psychiatric treatment in the manner to be prescribed in each individual case.
b. Such person may be committed to an institution to be designated by the commissioner of institutions and agencies for treatment, and upon release shall be subject to parole supervision.
In the event that the court shall order a commitment of the person as provided in this section, such order of commitment shall not specify a minimum period of detention, but in no event shall the person be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted.'
The trial judge elected to reject the recommendation of the Center that defendant be placed on probation and, on August 26, 1965, committed him under N.J.S. 2A:164--6(b), N.J.S.A. to an institution designated by the Commissioner of Institutions and Agencies, namely, the State Prison Farm at Rahway. Impairing the morals of a minor is a misdemeanor, which carries a maximum penalty of three years. The judge ordered that the commitment be
Defendant contends that the trial court was bound to follow the recommendation of the Center to place him on probation, and the court had no right to commit him to an institution. We disagree.
A trial court has no right to ignore the Certer's finding that a defendant falls within the purview of the act and sentence him as an ordinary criminal. State v. Thompson, 84 N.J.Super. 173, 177, 201 A.2d 384 (App.Div.1964). But the court does have the right to commit the defendant under 6(b) even though the Center recommends that the defendant be placed on probation under 6(a). We need not decide whether a court has the power to place a defendant on probation under 6(a) against the Center's recommendation that a defendant be committed under 6(b), but the language of 6(a) indicates plainly that the Court is not compelled to accept a recommendation of probation. 6(a) states that the probation shall be 'with the requirement, as a condition of said probation, that he receive out-patient psychiatric treatment in the manner to be prescribed in each individual case.' There may be many reasons why probation in a given case is impractical or undesirable, and we are convinced that the Legislature intended to leave it to the discretion of the court whether to follow a recommendation of 6(a) probation. See also State v. Schreffler, 63 N.J.Super. 148, 150, 164 A.2d 192 (App.Div.1960).
If that be so, defendant argues that here it was an abuse of the court's discretion to ignore the recommendation of the Center. We doubt whether this question may be raised in an application for post-conviction relief, especially after defendant has been confined since 1965. In any event, we find here no abuse of discretion.
Defendant argues that consecutive sentences under the Sex Offender Act are prohibited. We find nothing in the statute or the cases which supports that contention. See State v. Johnson, 91 N.J.Super. 426, 221 A.2d 23 (App.Div.1966). Since the maximum term for each offense was three years, the trial judge doubtless felt that the period of possible confinement or parole should be nine years rather than the three years which concurrent sentences would provide, and we think that the Legislature meant to give that discretionary power to the court.
When the case was presented to us we learned that the Parole Board was treating consecutive sentences under the Sex Offender Act as it does consecutive sentences for ordinary...
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