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State v. Harvey

Decided: July 25, 1978.


McKenzie, J.s.c.


[162 NJSuper Page 387] On April 1, 1977 defendant pled guilty to rape. He was diagnosed as a sex offender under N.J.S.A. 2A:164-1 et seq. and sentenced to the Adult and Diagnostic Treatment Center (A.D.T.C.) under a 30-year indeterminate sentence.

Defendant was received at A.D.T.C. on April 5, 1977. On April 12, 1977 he committed a sodomy on another resident of the Center. He was thereafter transferred from the sex offender unit to the general prison population of the New Jersey State Prison at Rahway.

On appeal, the matter was remanded to this court for a hearing under State v. Horne , 56 N.J. 372 (1970), and to review the interinstitutional transfer of defendant.

After a plenary hearing in which the State was represented by the Office of the Prosecutor of Union County, the court determined that defendant's objection to his classification as a sex offender, not raised at the time of sentencing, was not well founded. The court also ruled that the transfer of defendant from A.D.T.C. was made arbitrarily and without legal authority. Accordingly, this court ordered defendant to be returned to A.D.T.C. Since the Commissioner of the Department of Corrections (Commissioner) was not directly represented at the hearing, the court granted leave to the Commissioner to apply to the court for reconsideration. Such application having been made, the court has heard and considered the evidence adduced by the Commissioner bearing on the transfer of the defendant out of the sex offender unit.

The facts, insofar as is necessary to determine the issues before the court, are not substantially in dispute. The court is satisfied from the evidence that defendant is a violent individual who, within a few days after admission to A.D.T.C., committed an act of sodomy on another resident. Whether a razor was employed by defendant is somewhat in dispute, although he did on one occasion admit to the authorities that he threatened the victim with the same in committing the act, and A.D.T.C. found that he did so. Racial tension within the institution resulted -- defendant is black, his victim is white -- and a polarization of the residents occurred. White residents reportedly threatened to form a vigilante committee to deal with defendant.

A.D.T.C. does not presently have facilities to segregate residents on a long-term basis. The environment is therapeutic rather than punitive. The principal mode of treatment is group therapy. Under these circumstances it was determined by A.D.T.C. that they did not have the appropriate modality to deal with defendant and meet his needs. Accordingly he was transferred to the New Jersey State Prison at Rahway as a member of the general prison population. No specific program or plan was established by the Commissioner to treat or otherwise deal with defendant thereafter. Simply put, because of his violent nature defendant did not fit in at A.D.T.C., and there is no plan or program to treat him so long as he remains violent.

The case presents both a paradox and an anomaly. Rape by its very nature is a violent crime and specifically "violent" is one of the criteria necessary to find a defendant a proper subject for treatment under the act. N.J.S.A. 2A:164-5. Paradoxically, A.D.T.C. is unable and not set up to deal with sex offenders who are too violent. Anomalously, one of the purposes of the Sex Offender Act being to afford treatment to a defendant which will protect the public from future assaultive behavior by him, the greater danger he poses to the safety of the public, the less chance there is he will obtain the treatment he needs.

N.J.S.A. 2A:164-7 is relied upon by the Commissioner for the transfer of this defendant and provides as follows:

The commissioner of the department of institutions and agencies, upon commitment of such person, shall thereupon arrange for his treatment in one of the institutions under the jurisdiction of the department which, in the judgment of the commissioner, is best suited to care for the needs of such person. The commissioner, in his discretion, is hereby authorized and empowered to arrange for the transfer of such person to or from any institution within the jurisdiction of the department for the purpose of providing for the needs and requirements of such person according to the individual circumstances of the case.

The purpose of the act has been construed by our courts to be "cure through treatment of the ...

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