On appeal from the Department of Corrections, Special Classification Review Board.
Pressler, Brody and Cohen.
This appeal requires us to reconsider the question of the parole eligibility of a defendant who was sentenced to an indeterminate term under the former New Jersey Sex Offender Act, N.J.S.A. 2A:164-3, et seq. (repealed in 1978 by N.J.S.A. 2C:98-2), and who was thereafter transferred from the Adult Diagnostic and Treatment Center (ADTC) to the general prison population. We disagree with the conclusion reached by State v. Smith, 190 N.J. Super. 21 (App.Div.1982), and hold that the parole status of such a defendant must be the same as that of a sex offender sentenced under N.J.S.A. 2C:47-1, et seq.
The facts are essentially undisputed. In 1966 defendant Raymond Gerald pleaded guilty to an accusation charging him with sodomy and impairing the morals of a minor in violation of former N.J.S.A. 2A:143-2 and 2A:96-3, respectively. Pursuant to former N.J.S.A. 2A:164-3 he was committed to the Diagnostic Center, the predecessor of ADTC, for a physical and psychiatric evaluation, as a result of which the diagnostic unit found him eligible for treatment as a sex offender and recommended his commitment for specialized treatment. See former N.J.S.A.
2A:164-5 and 6(b). The trial judge sentenced defendant to an indeterminate term, subject to a 30-year maximum, at the diagnostic unit.
The Code became effective on September 1, 1979. In August 1980 defendant moved for resentencing pursuant to N.J.S.A. 2C:1-1(d)(2). The Resentencing Panel concluded that defendant had demonstrated the requisite disparity for relief but that he had failed to demonstrate good cause therefor. We affirmed the Panel's denial of relief, noting that defendant had not responded to therapeutic treatment. See State v. Gerald, A-636-80T4 (decided March 17, 1982).
In affirming the Resentencing Panel's denial of relief, the court was evidently unaware that during the pendency of his appeal from its decision, he was transferred by ADTC to Rahway State Prison. This transfer took place in October 1981, nearly 15 years after his original commitment. The reason for the transfer is explained in the November 1981 report of the Special Classification Review Board, which stated that it had been
Defendant has been evaluated by the Special Classification Review Board at 6-month intervals since his transfer. The last of these, dated June 15, 1984 and constituting the 32nd consideration of defendant's status, recommends continued confinement. It explains that
Mr. Gerald was transferred to SPR [State Prison of Rahway] on October 6, 1981 due to continued non-participation in therapy, as well as indications that he is comfortable in an institutional setting and does not want to make progress.
Mr. Gerald continues to refuse to attend the SPR group, to be interviewed or to have his six month review. He remains bitter, angry and resentful.
Due to lack of attendance in group and refusal to be interviewed, no evaluation can be made and further retention must be necessarily recommended.
Defendant appeals from this report and recommendation claiming that as a result of his transfer ...