Conford, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
Prior to January 11, 1968 one convicted of incest could not be committed under the Sex Offender Act, N.J.S.A. 2A:164-3 et seq. , because "the crime of incest [was] not included among the sex offenses specified in the statute." State v. Bray , 67 N.J. Super. 340, 346 (App. Div. 1961). An amendment of N.J.S.A. 2A:164-3, effective January 11, 1968, added "incest" to the crimes to which the act applies.
The substantive question sought to be argued on this appeal is whether, in view of the prohibition against ex post facto legislation found in the Federal and State Constitutions, the 1968 amendment may constitutionally be applied to one who committed incest prior to January 11, 1968. Defendant was found guilty at the trial held in July 1968 of an indictment charging him with having had incestuous relations with his daughter between March and December 21, 1967.
The posed question was answered in the affirmative by the sentencing judge on September 9, 1968 when he committed defendant to the Diagnostic Unit, State Prison Farm in Rahway, under the Sex Offender Act, and again on January 31, 1969 when he denied defendant's pro se motion to correct an allegedly illegal sentence.
No appeal was taken by defendant either from the original conviction and sentence or from the denial of the motion to correct the sentence. Such appeal would have been the appropriate vehicle to bring the question before us. The course which defendant has pursued -- a petition for post-conviction relief filed October 14, 1969, seeking to relitigate the same issue, followed by this appeal from the dismissal of the petition -- is not. See R. 3:22-5.
Nevertheless, we are satisfied that the constitutional problem presented is of sufficient import to call for relaxation of the rules so that we may consider the question on its merits.
In ruling adversely to defendant the trial court relied on cases which held that commitment under the Sex Offender Act does not entail a heavier penalty on the offender. Those courts therefore rejected both the contention that the Sex Offender Act deprives the offender committed thereunder of equal protection of the laws, see State v. Wingler , 25 N.J. 161, 174-175 (1957), and the contention that it was a denial of due process to find one a sex offender on the basis of the Diagnostic Center report without affording him an adversary-type hearing on the merits of the report. See, e.g., State v. Blanford , 105 N.J. Super. 56, 60 (App. Div. 1969), remanded for further sentencing proceedings sub nom. State v. Horne , 56 N.J. 372 (1970).
However, the fact that a sentence under the Sex Offender Act does not constitute more severe or greater punishment is not dispositive in determining whether the 1968 amendment constitutes, if applied to defendant, ex post facto legislation.
In the leading case of Lindsey v. Washington , 301 U.S. 397, 57 S. Ct. 797, 799, 81 L. Ed. 1182 (1937), the court, in holding the sentencing statute there involved to be ex post facto legislation, said:
The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. * * *
We need not inquire whether [the statutory change] is technically an increase in the punishment annexed to the crime, * * *. It is plainly to the substantial disadvantage of ...