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Savad v. Department of Corrections

Decided: March 26, 1981.

MARTIN SAVAD, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT. MICHAEL VON GRAEVENITZ, APPELLANT, V. DEPARTMENT OF CORRECTIONS, RESPONDENT. CLIFFORD EMMITT, APPELLANT, V. DEPARTMENT OF CORRECTIONS, RESPONDENT. FREDERICK W. TRESIZE, APPELLANT, V. DEPARTMENT OF CORRECTIONS, RESPONDENT



On appeal from the Department of Corrections.

Allcorn, Pressler and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).

Furman

The issue on these four consolidated appeals from orders of the Department of Corrections is whether appellants, who were sentenced under the Sex Offender Act, N.J.S.A. 2A:164-3 et seq. , are eligible for work and good behavior credits under N.J.S.A. 30:4-92 and 30:4-140 and, if so, on what date. Sex offenders sentenced under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. , which was effective on September 1, 1979 and which repealed the Sex Offender Act, are eligible for work and good behavior credits in remission of time from their sentences. Repealed N.J.S.A. 2A:164-10 provided:

No statute relating to remission of sentence by way of commutation time for good behavior and for work performed shall apply to any such person committed pursuant to section 2A:164-6 of this title, but provision may be made for monetary compensation in amount to be prescribed by the state board of control of institutions and agencies, in lieu of remission of sentence for work performed.

Appellants Savad and Emmitt were resentenced under the Code by the three-judge resentencing panel which was constituted by a directive of the Supreme Court (see 104 N.J.L.J. 489 (December 6, 1979)), upon a determination by the panel pursuant to N.J.S.A. 2C:1-1 d(2) that the maximum terms of imprisonment for the Title 2A crimes of which they were convicted exceeded the maximum terms of imprisonment for the equivalent or congruent offenses under the Code.

Appellant Emmitt has been released under parole supervision pursuant to N.J.S.A. 2C:47-5. On the appeal before us he contends that he is entitled to good behavior credits from the date of his sentence under Title 2A in 1965 and to work credits from the effective date of the Code, recognizing that he received monetary compensation in lieu of remission of sentence for work performed prior thereto. Appellant Savad seeks both work and

good behavior credits from the date of his sentence under Title 2A in 1973. The State concedes that appellants Savad and Emmitt are eligible for work and good behavior credits as of the dates of their resentences under the Code*fn1 in March 1980 but disputes their eligibility prior thereto.

Appellant Von Graevenitz's motion for a resentence under the Code was denied because he failed to establish good cause for resentencing beyond mere disparity between his maximum term under Title 2A and the maximum term for the equivalent or congruent offense under the Code. We affirmed in State v. Von Graevenitz , 176 N.J. Super. 210 (App.Div.1980), certif. den. 85 N.J. 495 (1981).

Appellant Tresize has not applied for resentencing under the Code. On this appeal both appellants Von Graevenitz and Tresize contend that they are entitled to work and good behavior credits from the effective date of the Code. The Department of Corrections barred them from eligibility for commutation credits, in accordance with repealed N.J.S.A. 2A:164-10.

All four appellants were committed under the Sex Offender Act to the Adult Diagnostic and Treatment Center at Avenel for terms without minimums and with fixed maximums, as repetitive and compulsive sex offenders. The resentences of appellants Savad and Emmitt continued their commitments there. All four appellants have been subject to specialized in-patient treatment and therapy. Under N.J.S.A. 2A:164-8, now repealed, they were eligible for release under parole supervision, at any time after their confinement, upon determination by the State Parole Board with the recommendation of the Special Classification Review Board that they were "capable of making an acceptable social adjustment in the community." The identical administrative procedure and standard for release of sex

offenders is in effect in N.J.S.A. 2C:47-5, which governs sex offenders committed under the repealed Sex Offender Act as well as those committed under the Code. The provisions of the Code for release or discharge of prisoners are applicable to those under sentence for offenses ...


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