Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
Defendant appeals in forma pauperis from the dismissal of his application for a writ of habeas corpus. The application charged that his confinement and detention in a New Jersey State Prison is illegal because: (1) he was not afforded an opportunity to make a statement in his own behalf prior to sentencing, and (2) a resentence by which he was committed to the New Jersey State Hospital in Greystone Park pursuant to the provisions of the Sex Offender Act, N.J.S. 2 A:164-3 et seq. , for an indeterminate term, subjected him to a more severe penalty than that originally imposed.
Defendant was convicted by a jury on November 30, 1956 on 17 counts charging incestuous conduct with his child (N.J.S. 2 A:114-2). Simultaneously, he was convicted
on an indictment for impairing the morals of a minor (N.J.S. 2 A:96-3). On January 4, 1957 a State Prison sentence of not less than 10 nor more than 15 years was imposed on the third count of the incestuous conduct indictment, and like sentences were imposed on the remaining 16 counts of this indictment, to run concurrently therewith; a sentence of not less than 2 nor more than 3 years was imposed on the impairing of morals charge, to run concurrently with the sentences imposed on the incest charges, to be served at the New Jersey State Hospital at Trenton. The sentencing judge having formally requested the Commissioner of the Department of Institutions and Agencies to designate an appropriate institution for defendant's commitment under the Sex Offender Act, N.J.S. 2 A:164-3 to 13 (see particularly 2 A:164-5 and 6), the department recommended commitment to the State Hospital at Greystone Park.
On February 8, 1957 the court on motion of the Attorney General recalled defendant, vacated all of the prison terms previously imposed, and committed him to the New Jersey State Hospital at Greystone Park in accordance with this recommendation, and on February 13 following, defendant was transferred to that hospital.
Subsequently he escaped from Greystone Park and upon recapture was convicted of that offense and on February 28, 1958 sentenced by the Morris County Court to a minimum of one year and a maximum of three years, to be served in the New Jersey State Prison.
On March 31, 1958 the Commissioner of the Department of Institutions and Agencies pursuant to N.J.S. 2 A:164-7 transferred defendant from the custody of Greystone Park to the State Prison at Trenton, to be held therein as provided by law. The transfer permitted defendant to serve his time under the sex offender commitment concurrently with the sentence for escape.
On October 29, 1959 defendant filed an application for a writ of habeas corpus with the Superior Court of New
Jersey, Bergen County. This application was similar to the one which is the subject of this appeal. It was assigned to the Bergen County Court, which held that defendant's confinement in State Prison was legal and in conformity with the authority granted the Commissioner under N.J.S. 2 A:164-7, supra. The application for a writ was denied; no appeal was taken.
On June 30, 1960 defendant filed a second application for a writ of habeas corpus , the denial of which is the subject of this appeal.
Subsequent to the filing of the notice of appeal to this court, the State moved for resentence on the incestuous conduct indictment, on the ground that defendant's commitment as a sex offender was incorrect since the crime of incest is not within the purview of the Sex Offender Act. See N.J.S. 2 A:164-3. By then defendant had served his three years on the sentence for impairing the morals of a minor (which is within the purview of the Sex Offender Act) ...