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. 2 A:96-3. Pursuant to N.J.S. 2 A:164-3 et seq., he was committed to the Diagnostic Center for examination. The Center reported that defendant "falls within the purview of N.J.S. 2 A:164-5 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. 2 A:164-6(a))." N.J.S. 2 A:164-6 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. 2 A:164-6(b) 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
"* * * for an indeterminate period on each accusation, with the maximum on each accusation of three years * * * and these periods of commitment run consecutively. This means that the period of your commitment to the Diagnostic Unit of the State Prison Farm is for an indefinite period, subject to that maximum limitation of nine years, but means that you will receive the treatment there that I think that you need, and can be discharged when the experts in that institution feel that in their opinion you may safely be released to regain your place in society."
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 Center'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 (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. ...