For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
[56 NJ Page 373] The Appellate Division denied post-conviction relief in the reported cases of State v. Blanford, 105 N.J. Super. 56 (1969); State v. Andrews, 105 N.J. Super. 62 (1969); and State v. Horne, 105 N.J. Super. 297 (1969). It also denied post-conviction relief in the unreported case of State v. Coleman and rejected the defendant's appeal in the unreported case of State v. Barnes. We granted certification for the sole purpose of reviewing the scope of
the right of these defendants to hearing after their convictions but before their sentencing under the Sex Offender Act (N.J.S.A. 2A:164-3 et seq.). 54 N.J. 248 (1969); 54 N.J. 506 (1969); 54 N.J. 507 (1969); 54 N.J. 513 (1969); 55 N.J. 358 (1970).
In State v. Wingler, 25 N.J. 161 (1957), we upheld our Sex Offender Act though it failed to embody any express requirement for hearing prior to sentencing thereunder. However, we held that, apart from any constitutional compulsion, the trial court should submit the Menlo Park Diagnostic Center's report to the defendant and afford to him an opportunity to be heard thereon. 25 N.J. at 179. There was nothing whatever in Wingler or in its implementing rules (R.R. 3:7-10(c); R. 3:21-3) to suggest that the contemplated hearing would be other than a traditional judicial one in which evidence is duly " received and weighed" (New Jersey State Bd. of Optometrists v. Nemitz, 21 N.J. Super. 18, 28 (App. Div. 1952)). Despite this, the practice developed in the trial courts of confining the defendant to an attack on the sufficiency of the report on its face in the light of the statutory standards (N.J.S.A. 2A:164-5); in other words, even where he challenged the accuracy and validity of the factual and conclusional assertions in the report, the State was not called upon in the trial court to present its supporting evidence, psychiatric and otherwise, with fair opportunity for cross-examination. The defendants now before us contend that such failure to afford them plenary hearings on their challenges to the Center's reports not only disregarded their procedural rights under Wingler and its implementing rules but also deprived them of their constitutional rights under Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2 d 326 (1967).
In Specht the defendant was convicted for indecent liberties under a Colorado statute which carried a maximum sentence of 10 years. He was sentenced, without a full hearing, under a separate Colorado Sex Offender Act for an indeterminate term of one day to life. The Supreme
Court held that this was constitutionally improper, noting in the course of its opinion, that Colorado's statute was not unlike the customary recidivist statute which entails, upon an appropriate factual finding, increased punishment beyond that fixed for the substantive offense. See N.J.S.A. 2A:85-9, 13; State v. Booker, 88 N.J. Super. 510, 515 (App. Div. 1965), cert. denied, 384 U.S. 944, 86 S. Ct. 1472, 16 L. Ed. 2 d 543 (1966). In State v. Blanford, supra, 105 N.J. Super. 56, the Appellate Division pointed out that the Colorado statute differed in material aspects from our own (105 N.J. Super at 59); in particular, it stressed that unlike Colorado a defendant's commitment in New Jersey under its Sex Offender Act may not, in any event, exceed the maximum prescribed by statute for the substantive offense. N.J.S.A. 2A:164-6. The Appellate Division held therefore that Specht was not controlling here and that a plenary hearing was not constitutionally required. 105 N.J. Super. at 60. The recent determination by the third circuit in United States Ex Rel. Demeter v. Yeager, 418 F.2d 612 (1970) was to the same effect.
We assume, for present purposes, that Specht is not controlling and that no issue of constitutional dimension is before us; we hold nonetheless that where the defendant duly challenged the sufficiency or any material aspect of the Center's report he was entitled, under Wingler and its implementing rules, to be confronted with the witnesses against him, with the right to cross-examine and with the right to offer evidence on his own behalf. Wingler specifically directed that the defendant be given a copy of the Center's report with "opportunity to be heard thereon." 25 N.J. at 179. R.R. 3:7-9(c) repeated this language and R. 3:21-3 directed that the trial court "shall advise defendant of his opportunity to be heard thereon and shall afford him such hearing." Any lingering doubts that Wingler and its implementing rules contemplated a hearing in the traditional judicial sense with full opportunities of confrontation, cross-examination and defense should have been
dispelled by the implications of our recent holding in State v. Kunz, 55 N.J. 128 (1969) and its treatment of Wingler. 55 N.J. at 140-41, 146; cf. State v. Blanford, supra, 105 N.J. Super. at 60.
In Kunz the defendant was convicted of having purchased a stolen automobile in violation of N.J.S.A. 2A:139-1. He was sentenced to a prison term without having been afforded any opportunity to examine the presentence report upon which the trial judge had relied. On appeal, we set aside the prison term and remanded the matter for resentencing. We held that the defendant was entitled, prior to sentencing, to examine the presentence report and challenge matters set forth therein. On such challenge the trial judge could disregard the challenged matter and so declare. However, any challenged matter which was not being disregarded would have to be the subject of proof. The burden would be on the State to introduce its evidence supporting the challenged matter and the defendant would have the right to cross-examine and introduce evidence on his own behalf. In response to the suggestion that this would be unduly burdensome on the judicial process, we noted that in the occasional instances where the challenged matter was crucial to the sentencing process, the risk of injustice was "far too great to proceed without proof." 55 N.J. at 146.
All of the foregoing applies with even greater force when dealing with the sentencing process under the Sex Offender Act. See State v. Wingler, supra, 25 N.J. at 178-79. That Act directs that whenever the defendant is convicted of a designated sex offense he shall be committed to the Diagnostic Center for physical and mental examination. N.J.S.A. 2A:164-3. If, through clinical findings at the Center, it is determined that the defendant's conduct was characterized by "a pattern of repetitive, compulsive behavior" and either "violence" or "age disparity" then the court is directed, upon ...