Leonard, Allcorn and Crahay. Crahay, J.A.D.
Defendant originally appealed from a denial of post-conviction relief which essentially challenged his continued incarceration in New Jersey State Prison as a parole violator.
The appeal projected basically two issues: (1) that he was entitled to have further proceedings before the trial court to test the accuracy of a Menlo Park Diagnostic Center report employed at the time of his sentencing as a sex offender in 1958, and (2) that he could not continue to be held under his original commitment since at the time he was found to be in violation of parole he was not suffering from any sexual aberration or disorder and did not require further custodial treatment and supervision as a sex offender.
As to the first issue, we held in an unreported opinion that the trial judge's findings on the hearing for post-conviction relief were supported by the record. We noted further that the record reflected that experienced and competent defense counsel not only did not challenge the Diagnostic Center report at the time of sentencing but rather affirmatively concurred in its findings. Accordingly, we concluded on the record here that State v. Horne, 56 N.J. 372 (1970), did not mandate an attack on the diagnostic report 13 years after its submission.
We then proceeded to dismiss the appeal on the remaining issue as being moot, having ascertained that on June 19, 1973 -- the date of the original argument -- defendant had been admitted to bail and was to be reparoled on June 26, 1973.
Defendant's subsequent petition for certification was granted by the Supreme Court, the dismissal of the appeal set aside and the cause remanded to the Appellate Division for a meritorious disposition. The issue presently addressed to us is a consideration of the manner of treatment of alleged parole violations by persons sentenced under the Sex Offender Act (N.J.S.A. 2A:164-3 et seq.), and specifically, as here where there is no finding that the offender continues to suffer from any mental disorder grounded in sexual aberration warranting continued custodial supervision and treatment.
The legal issue presented on this record is a narrow one and it, and some tangential considerations, have been thoroughly and ably briefed by the parties several times in the course of this appeal. We chronicle the essential and undisputed facts.
On May 20, 1957, in a two-count indictment, defendant, then 28 years of age, was charged in the first count with the carnal abuse of a 15-year-old girl contrary to N.J.S.A. 2A:138-1, and in the second count with assault with intent to commit carnal abuse. On November 25, 1957 defendant pleaded non vult to the first count of the indictment.
By virtue of N.J.S.A. 2A:164-3, 5 and 6, defendant was committed to the Diagnostic Center and, following an examination in January 1958, was found to be within the purview of the act*fn1 and he was sentenced as a sex offender to an indeterminate term at the New Jersey State Hospital.
In June 1962 defendant was paroled. Attached to his certificate of parole -- and executed by defendant -- were the standard terms and conditions then generally employed by the State Parole Board. No special conditions were included, notwithstanding the nature of defendant's offense or the reasons for his incarceration.
In January 1967 the Parole Board declared defendant to be "delinquent on parole," having violated conditions 4(a) and 4(g)(5) of the stated conditions of his parole. Those conditions required him to "obey all laws and public ordinances" (4(a)) and to "obtain permission from his parole supervisor before leaving the State of your approved residence" (4(g)(5)). The gravamina of the breaches were that (1) defendant had been convicted of attempted petit larceny in the State of New York on January 16, 1967, and (2) that he had failed to gain his parole supervisor's permission before leaving New ...