On certification to the Superior Court, Appellate Division, whose opinion is reported at 189 N.J. Super. 379 (1983).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For modification -- None. The opinion of the Court was delivered by Schreiber, J.
The defendant pleaded guilty to kidnapping (N.J.S.A. 2C:13-1 b(1) and (2)) and aggravated sexual assault (N.J.S.A. 2C:14-2 a(6)). After explaining the potential sentences, including possible periods of parole ineligibility, the trial court accepted the pleas. The court ordered that defendant be examined at the Adult Diagnostic and Treatment Center at Avenel (Avenel) prior to sentencing in accordance with N.J.S.A. 2C:47-1.
The Avenel report determined that the defendant's conduct was characterized by a pattern of repetitive, compulsive behavior and recommended sentencing to Avenel for a program of specialized treatment for the defendant's mental condition. See N.J.S.A. 2C:47-3 a. In light of this recommendation, the trial court imposed a sentence of twenty years at Avenel with a minimum parole ineligibility period of ten years for the kidnapping and a concurrent sentence of twenty years at Avenel with a minimum parole ineligibility period of ten years for the aggravated sexual assault.
Before enactment of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:98-4 (the Criminal Code), the defendant had been convicted of abduction with intent to defile. The trial court concluded that the earlier conviction was substantially equivalent to the Criminal Code offense of sexual assault and that the present conviction for aggravated sexual assault was a
second sex offense. The court therefore imposed a fixed minimum sentence of parole ineligibility pursuant to N.J.S.A. 2C:14-6.
Upon appeal a majority of the Appellate Division panel remanded the cause to the trial court for resentencing. The Appellate Division held that the trial court could either sentence the defendant to Avenel with a mandatory five-year parole ineligibility term as a second sex offender pursuant to N.J.S.A. 2C:14-6 or sentence him to the custody of the Commissioner of the Department of Corrections (the Commissioner) with minimum parole ineligibility terms of up to one half of the fixed term sentences pursuant to N.J.S.A. 2C:43-6 b. 189 N.J. Super. 379 (1983). Judge Michels dissented in part. 189 N.J. Super. at 399. In his view any defendant sentenced to Avenel, whether or not a second or subsequent sex offender, could be subject to a minimum parole ineligibility term of up to one half of the fixed term sentence under the Criminal Code.
The State filed a notice of appeal under R. 2:2-1, there being a divided Appellate Division decision. The defendant, questioning the sentencing judge's authority to disregard the Avenel diagnostic report and to sentence the defendant to the custody of the Commissioner instead of Avenel, petitioned this Court for certification.
While the petition for certification was pending, the trial court held a limited resentencing hearing. It then modified the kidnapping sentence to provide that the defendant would be placed in the custody of the Commissioner for twenty years with a mandatory minimum period of parole ineligibility of ten years and with the "recommendation * * * that the Commissioner consider having the sentence served at Avenel."
We granted defendant's petition for certification. 94 N.J. 554 (1983). We hold that a defendant may be sentenced to Avenel with a mandatory minimum parole ineligibility period; that if the defendant is convicted of a second or subsequent sex offense, the mandatory minimum parole ineligibility term must be
at least five years; and that the trial court has the discretion, after receipt of the Avenel report recommending that the sentence be served there, to order that the defendant be sentenced to the custody of the Commissioner instead. We therefore reverse the judgment of the Appellate Division essentially for the reasons stated in Judge Michels' dissent.
At issue here is the interrelationship of sections of the Criminal Code with each other and with N.J.S.A. 30:4-123.51 of the Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.70 (the Parole Act).
N.J.S.A. 2C:14-2 describes the elements of an aggravated sexual assault and provides that it is a crime of the first degree. The same section also delineates the elements of a sexual assault, which is designated a crime of the second degree. N.J.S.A. 2C:14-3 defines aggravated criminal sexual contact, which is designated a crime of the third degree, and criminal sexual contact, a crime of the fourth degree. Generally, the terms of imprisonment are ten to twenty years for a crime of the first degree, five to ten years for a crime of the second degree, three to five years for a crime of the third degree, and a specific term not to exceed eighteen months for a crime of the fourth degree. N.J.S.A. 2C:43-6 a.*fn1 If the court is clearly convinced that the aggravating ...