Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Kilkenny, J.A.D.
[100 NJSuper Page 596] In these combined appeals Bernard Smith, a long-term prisoner at State Prison, charges that: (1) the Commissioner of Institutions and Agencies did not
have authority under R.S. 30:4-7 to transfer him to a state mental hospital; (2) his commitment to the Trenton State Hospital was done under circumstances fundamentally unfair and shocking to a sense of justice, in violation of constitutional due process guaranteed by the Fourteenth Amendment, and (3) his continued detention at that hospital entitled him to a writ of habeas corpus, erroneously denied.
At the time of oral argument of this appeal Smith had been retransferred from the Trenton State Hospital to State Prison, thereby making moot substantially all of his claims of administrative and judicial error. Since the issues may arise again, we consider for future guidance the points advanced by him.
Smith was received at State Prison on December 19, 1946 after conviction in Atlantic County of robberies, breaking and entering, and murder. Consecutive sentences aggregating 48 to 52 years were imposed, to which was superadded a consecutive life sentence. Thereafter, the Mercer County Court imposed an additional five-to-seven-year sentence for atrocious assault and battery, which was made consecutive to the aforementioned sentences, and later lodged as a detainer.
The record indicates that Smith has a long history of mental illness. As early as November 24, 1954 Dr. Paul B. Means, a staff psychiatrist at State Prison, indicated that Smith required treatment for a psychopathic personality with psychosis paranoid type. By reason thereof, he was transferred to the New Jersey State Hospital for treatment for that condition. Authority for the transfer was based on R.S. 30:4-7. Smith improved and he was returned to prison on February 28, 1964.
On January 27, 1965 Dr. Sidney G. Fine, a clinical psychiatrist at the State Prison, found Smith in partial remission with a diagnosis of schizophrenic reaction. Subsequent examinations by Dr. Fine in March and April, and on May 21, 1965 disclosed his adjustment as not favorable. Smith was retransferred to the State Hospital on May 21, 1965. He remained there until January 17, 1966 when, his
condition having improved, he was again transferred to prison to continue service of his sentences.
Dr. Fine again found him psychotic on August 10, 1966 and on the same day Smith was once more transferred to the State Hospital. After this transfer, Smith challenged his continued hospitalization. Judge Kingfield, sitting specially on September 22, 1966 at the hospital, after hearing and considering the psychiatric testimony presented, found that Smith was still in need of hospitalization. A writ of habeas corpus was denied.
All of the above transfers were made under the authority of R.S. 30:4-7. However, the last transfer to the hospital was followed by a regular commitment hearing in the Mercer County Court, pursuant to R.S. 30:4-82. At that hearing, Smith asked for the appointment of an attorney or a psychiatrist to act in his behalf. His request was denied by the hearing judge. Following testimony by Dr. Joachim Elizondo and Dr. Pongrac Feniczy, two licensed physicians on the staff of the New Jersey State Hospital at Trenton, and also the testimony of Smith, the County Court determined that he was mentally ill and required hospitalization for such mental illness. Accordingly, an order was entered on May 12, 1967 committing Smith to the New Jersey State Hospital at Trenton to be cared for there at the expense of the State of New Jersey.
Subsequent thereto, as first noted above, Smith recovered his mental competency sufficiently to be returned to State Prison. (We have informally been advised by his attorney that Smith was transferred ...