Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Appellant, Eugene Tully, protests the action of the Commissioner of Institutions of the State of New Jersey in transferring him from Greystone Park State Hospital to State Prison and in refusing his request for retransfer.
Tully was convicted of the crime of assault with intent to rape. Pursuant to N.J.S. 2 A:164-3 et seq. , he was examined at the State Diagnostic Center at Menlo Park on January 23, 1957. On recommendation of the Commissioner of Institutions, and pursuant to N.J.S. 2 A:164-6, subd. b , appellant was committed to Greystone Park Hospital on February 21, 1957, where he was given a psychiatric examination which resulted in a diagnosis of "Sociopathic Personality Disturbance, Dissocial Reaction." The following information was elicited from Tully during this examination: He was 22 years of age; the offense for which he was convicted involved a 16 year old girl; he admitted that he over-indulges in alcoholic beverages and has a preoccupation with movies and stories that depict crimes and violence; he served in the Marines for four years and saw combat duty in Korea; he got "a big thrill" out of killing enemy soldiers; he described various homosexual activities; while in the fifth grade at school he set a girl's hair on fire by flipping a match on her head; he had very strong and sometimes uncontrollable sadistic impulses which have been acted out not only in the present offense but in previous sexual attempts as well. It was concluded that Tully represented a threat to his community and to himself.
While the original investigation report suggested that appellant's problem was predominantly psychiatric, this theory was later abandoned. When, consistent with the requirement of N.J.S. 2 A:164-8, he received first consideration on July 16, 1957 by a review board for possible release on parole, it was reported that "No psychotic material has been detected. * * *" In his request to the Commissioner of Institutions on June 2, 1958 to transfer appellant to the State Prison, Dr. W. H. Longley, Clinical Director of Greystone Park Hospital, stated: "There is no psychosis present in this patient and he knows exactly what he is doing. * * * Request is made for his transfer to a penal institution as not amenable to rehabilitation by psychiatric means."
The following facts concerning Tully's behavior while a patient at the hospital are significant: He associated with the discontents of the ward in an attempt to create dissatisfaction; he gave the attendants back talk and refused to comply with hospital regulations; he had intercourse a few times with his fiancee on the hospital grounds; he tried to sabotage the laundry by having the special cases manning it slow down in their work and stay off-duty for sick call, with only flimsy excuses; he tried to organize a sit-down strike among the laundry workers; at times he has broken up group therapy sessions by shouting abuse at the doctor.
Tully was found to be brimming with hostility. He admitted that if he had a weapon he would have killed the girls who accused him and he would have shot up the courtroom when he was arraigned. Dr. Longley reported that: "We feel he is antisocial rather than insane and certainly not suitably motivated for therapy." The doctor continued by stating that Tully exploited the system that was trying to help him, and frustrated the hospital's main function of restoration and social rehabilitation for a great number of its patients by his example of urging misbehavior. The time was ripe, urged the doctor, "to rescue the hospital and its community function from his marasmic influence."
Dr. Longley's request was investigated by Dr. A. Lovell Bixby, Director of Correction and Parole. The Commissioner of Institutions then reached the following conclusions:
"(a) Appellant has complete disregard for the rules, regulations and established program for patient treatment at the Greystone Park State Hospital;
(b) Appellant intentionally has attempted to incite misbehavior on the part of other patients at the hospital and has urged them to disregard program and regulations;
(c) By so doing, appellant has effectively hampered the course of treatment for other patients at said hospital, all of which is detrimental to the recovery of said patients;
(d) Appellant has demonstrated that he has no interest in his own rehabilitation by and through the medium of the program at said hospital and has so disrupted the program at Greystone Park State Hospital that he must be removed therefrom and transferred to ...