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State v. Cavanaugh

Decided: December 10, 1979.

STATE
v.
JOSEPH CAVANAUGH. STATE V. JOHN DEGAGLIA. STATE V. MICHAEL VON GRAEVENITZ



Coleman, Marzulli and Yanoff. The opinion of the court was delivered by Yanoff, J.s.c.

Yanoff

All the defendants in the three cases listed above pleaded guilty to an act of lewdness under N.J.S.A. 2A:115-1. They were examined to determine whether they were compulsive sex offenders, and sentenced pursuant to the provisions of N.J.S.A. 2A:164-6 to an indeterminate term at the Adult Diagnostic Treatment Center (ADTC), not in excess of three years, the maximum penalty under N.J.S.A. 2A:115-1. Joseph Cavanaugh was sentenced June 23, 1978; John DeGaglia was sentenced June 13, 1978 and Michael Von Graevenitz was sentenced October 16, 1978. Thus, all have served more than six months at the ADTC. With credit for time served, they may also already have served more than 18 months. All have applied for release therefrom pursuant to the provisions of N.J.S.A. 2C:1-1d(2), the New Jersey Code of Criminal Justice (hereinafter Code).

Three statutes are involved:

(1) N.J.S.A. 2A:115-1, which reads:

Any person who commits open lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.

(2) Two provisions of the Code: N.J.S.A. 2C:1-1d(2) which reads:

Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code or who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as though the person had

been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.

and

N.J.S.A. 2C:14-4, as follows:

A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed. 'Lewd acts' shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.

Under the Code a disorderly person's offense carries a possible six-month term. N.J.S.A. 2C:43-8.

(3) The Sex Offender Act, N.J.S.A. 2A:164-3 et seq. , repealed by N.J.S.A. 2C:98-2, for which has now been substituted N.J.S.A. 2C:47-1 to 7.

N.J.S.A. 2A:164-3 provides that a person convicted of private or open lewdness or indecent exposure shall be committed to the ADTC for examination. If it is determined that his conduct "was characterized by a pattern of repetitive, compulsive behavior" in convictions for private lewdness, open lewdness or indecent exposure, upon recommendation by ADTC the sentencing court was required to submit the offender to a program of "specialized treatment" N.J.S.A. 2A:164-5, for a term not longer than the crime for which he was convicted, N.J.S.A. 2A:164-6b. He could be released on parole before the expiration of the term by the State Parole Board if it was determined by a special classification review board that he "[was] capable of making an acceptable social adjustment in the community." N.J.S.A. 2A:164-8.

N.J.S.A. 2C:47-1 lists the crime for which an offender must be referred to ADTC for examination. "Lewdness," the offense described in N.J.S.A. 2C:14-4, is not among them.

Defendants' application for resentence under N.J.S.A. 2C:1-1d(2) was followed by an application for ...


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