Sullivan, Labrecque and Gaulkin.
[112 NJSuper Page 558] In 1965 defendant was convicted after trial by jury of rape and of robbery. As to the rape, he was found to be subject to the Sex Offender Act, N.J.S.A. 2A:164-1 et seq. , and, pursuant to N.J.S.A. 2A:164-6, he was committed for treatment. Such commitment is
"until he is 'capable of making an acceptable social adjustment in the community' even though that be for the period equal to that provided by law as the maximum punishment for the crime of which he was convicted." State v. Mickschutz , 101 N.J. Super. 315, 320 (App. Div. 1968); N.J.S.A. 2A:164-8. The maximum for rape is 30 years. For the robbery defendant was sentenced to a term of five-to-seven years, consecutive to the sentence upon the rape charge.
Defendant took no appeal but in 1969 filed a petition for post-conviction relief. After hearing, the petition was denied, and defendant appeals. We affirm.
The grounds for relief alleged in the petition were, "The verdict is contrary to the weight of the evidence. And seeking a reduction of sentence." Defendant's counsel concedes that the contention that the verdict is against the weight of the evidence is not a proper basis for post-conviction relief. However, defendant contends that "although the rules provide for review of sentences in post-conviction proceedings only when the sentence is illegal, R. 3:22-2(c), * * * State v. Hicks , 54 N.J. 390 (1969), shows that sentences which are legal but excessive may be reviewed within the post-conviction framework." Since the present attack upon the sentence basically is that it is illegal, it is not necessary for us to determine whether State v. Hicks (supra) does permit the review of all sentences via petitions for post-conviction relief.
At the hearing on the petition, defendant's counsel (not present counsel) stated his position to be as follows:
THE COURT: All right. Anything else you want to tell me?
MR. GOLD: No, your honor.
The trial court refused counsel's request to permit defendant to testify "as to the type of rehabilitation that he is receiving," saying "[w]hat am I going to do, substitute my judgment for [that of] the rehabilitation center?" After defendant's counsel said he had nothing else to offer, the trial court dismissed the petition.
Defendant's appeal is presented to us under one point, "the failure of the court to afford the defendant a full and complete hearing on post-conviction relief constituted error." Whether the court so failed depends upon what defendant offered to prove. As we have seen, defendant offered testimony upon only one subject, the sufficiency of the treatment he was receiving. He did not contend he was not receiving treatment. To satisfy ourselves that he was in fact receiving some psychiatric treatment, we obtained copies of the records of the Diagnostic Unit at Rahway, where defendant has been confined (according to his brief) since July 1967. Those copies have been exhibited to defendant's present counsel. They show that defendant has been in group therapy since long before the filing of his petition to the present. The last report of his progress prior to the argument of this appeal was dated September 12, 1970.
Since defendant was receiving treatment, the trial court properly rejected the offer to prove that the treatment was not good enough. Since nothing else was offered, the hearing afforded defendant was sufficient and the petition was properly dismissed.
We note in passing that there is nothing in the record to indicate that, prior to the hearing in the trial court, the trial court (or even the State) had any notice that, under the cryptic ...