King, J.c.c., Temporarily Assigned.
Defendant was convicted in this court during the year 1973 on a charge of impairing the morals of a minor, specifically, committing the act of fellatio on an 11-year-old boy. Following the conviction the court directed the filing of a second offender accusation pursuant to the statute, N.J.S.A. 2A:85-8. Also following conviction the defendant was referred to Menlo Park Diagnostic Center for evaluation pursuant to the Sex Offenders' Act, N.J.S.A. 2A:164-3 et seq. At Menlo Park defendant was found to be a repetitive, compulsive offender within the meaning of the act, N.J.S.A. 2A:164-5. The Menlo Park authorities indicated that if the court were to incarcerate defendant, the appropriate facility would be the Diagnostic Unit, State Prison Farm, Rahway. Defendant now challenges his Menlo Park classification as a chronic offender and requests a hearing under State v. Horne, 56 N.J. 372 (1970). Defendant also moves to strike the second offender accusation and for disqualification of the court. Defendant further argues that if his sex offender status is affirmed, the enhanced punishment envisioned by the Habitual Offender Act will conflict with and be repugnant to the therapeutic goals of the Sex Offender Act. Additionally, defendant urges that the Habitual Offender Act is unconstitutional on its face as well as in its application to him.
The presentence report discloses that in 1965 defendant was convicted on three counts of debauching the morals of a minor, each count involving fellatio on a young boy. At that time he was classified at Menlo Park as a repetitive compulsive sex offender. For these offenses he received two three-year suspended State Prison sentences and two years' probation with psychiatric treatment. In June 1968 he was arrested and charged with two counts of lewdness, exposing himself to young girls. He was convicted on the lewdness
charges in February 1969 and sentenced to a six-year maximum indeterminate term at the Rahway Diagnostic Center after again having been classified as a repetitive, compulsive sexual offender by Menlo Park. While awaiting trial on the June 1968 lewdness charges defendant was arrested and charged with firing a loaded weapon at his wife in December 1968. He was convicted in 1970 on this charge and received a suspended sentence and probation consecutive to the six-year maximum indeterminate term imposed on the 1969 lewdness conviction he then was serving at Rahway. Defendant served 2 1/2 years at the Rahway Diagnostic Center on the February 1969 sentence and was released on parole in October 1971. On March 12, 1972 he was arrested on the present charge of impairing the morals of a minor, N.J.S.A. 2A:96-3, a misdemeanor with a maximum potential sentence of three years. He was returned to Rahway as a parole violator and was convicted on the present morals charge in June 1973.
At defendant's hearing on his Menlo Park classification as a repetitive compulsive sexual offender the State presented testimony by two psychiatrists who participated in his classification, Dr. Martin and Dr. Brancale. Defendant presented no testimony but asserted that his deviant tendencies were caused by a blood metabolism condition known as hypoglycemia. No defense of lack of mental capacity was presented at trial. Both of the state's physicians discounted any relationship between the blood condition and the sexual problem. The court was especially impressed with the testimony of Dr. Brancale, who has served as director of Menlo Park for 26 years and who has specialized in correctional psychiatry. His classification appears well justified, if not mandatory, and certainly meets the burden of proof imposed upon the prosecution by State v. Horne, supra.
Defendant first moves to disqualify the court because of the court's instruction to the prosecutor to file the second offender accusation under N.J.S.A. 2A:85-8. The procedure for filing is described in N.J.S.A. 2A:85-13. The
statute provides that if the offenses resulting in the second offender conviction "are such as to warrant the imposition of a penalty greater than the maximum * * *, then the court shall direct the prosecutor * * * to file an accusation accusing * * * [the defendant of the] prior convictions." This procedure was followed here. The court was of the opinion that the three-year maximum sentence was not adequate to protect the interests of society and to insure maximum potential rehabilitative consideration for defendant. The court quite naturally anticipated a Menlo Park classification as a chronic, repetitive sexual offender at the time the prosecutor was directed to file the accusation in view of the prior classifications. Here we have a defendant convicted a third time of sexual offenses with children and once of a violent assault with a loaded weapon upon his wife. A previous period of incarceration and treatment for 2 1/2 years at the Rahway Diagnostic Center was unproductive in preventing the offense for which defendant presently stands convicted. The coupling of these sexual offenses against children, with a demonstrated capacity for violent assault is a disturbing situation for the court to consider.
The predecessor statute to N.J.S.A. 2A:85-13 laid the duty of filing a multiple offender accusation upon the county prosecutor, stating "it shall be the duty of the prosecutor of the county" to file an accusation. N.J.S.A. 2A:85-13 (1951). The reason for shifting the responsibility to the judiciary for filing the accusation is obtained from the statement accompanying Senate Bill 285 introduced on March 18, 1953, which eventually became L. 1953, c. 166, our present N.J.S.A. 2A:85-13:
The defendant's previous record is known before sentence. Where the court intends to sentence defendant as a multiple offender, the defendant is entitled to a trial to prove that he is a multiple offender, but otherwise no such trial is necessary. Under section 2A:85-13 as it now stands, numerous accusations have been filed against defendants who thereafter were nevertheless sentenced to no more than the maximum for a first offense. Under this proposed amendment, such accusations will be filed only when necessary. The practice under the
present statute is expensive, takes much time in preparation and trial, slows up sentencing, and keeps defendants in the county jail at county expense for long ...