On appeal from the Superior Court, Law Division, Passaic County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c. (temporarily assigned).
[207 NJSuper Page 41] Defendant entered a guilty plea to a single count accusation charging that "in about 1967 and continuing from that time until about January, 1983" he committed "the crime of Aggravated Sexual Assault upon John Hamm, Steven Hamm and Peter Hamm, his minor children, contrary to the provisions of N.J.S.A. 2C:14-2a(1), (2)(a)(c)," a first degree crime. While the transcript of the plea has not been reproduced for this appeal,*fn1
there is no contest concerning the factual basis for the sexual abuse charge involving conduct for a period of more than 15 years. The presentence report contains a statement from defendant's oldest son John and excerpts of statements from his sons Steven and Peter; and defendant "admitted his guilt" to the probation officer. The statements reflect oral and anal "penetration," see N.J.S.A. 2C:14-1c.
The accusation, of course, involves preCode offenses, as the Code of Criminal Justice did not take effect until September 1, 1979, and offenses occurring before that date are generally governed by preCode law. N.J.S.A. 2C:1-1b, c; 2C:98-4. While knowledge of relevant dates and ages of each "victim" is necessary to establish the elements for commission of a first degree crime under N.J.S.A. 2C:14-2a(1) and (2), we are satisfied that the facts admitted by defendant show a first degree crime occurring since the effective date of the Code and after the presumption of imprisonment was refined in 1981. See N.J.S.A. 2C:44-1d. See also, State v. Hodge, 95 N.J. 369, 374 (1984). This is not contested and need not be further developed.
Despite a recommendation that defendant be placed on probation with psychological counselling as a sex offender, the trial judge sentenced defendant to the presumptive 15 year sentence to be served at the Adult Diagnostic and Treatment Center at Avenel.*fn2
On this appeal defendant argues that the court abused its discretion by refusing to accept the recommendation of the Adult Diagnostic and Treatment Center to place defendant on probation. He relies upon State v. Tucker, 169 N.J. Super. 334, 337 (App.Div.1979), where the court stated that "Although a sentencing judge may depart from the recommendation of the
report (State v. Tissot, 152 N.J. Super. 42 (App.Div.1977); State v. Mickschutz, 101 N.J. Super. 315 (App.Div.1968)), ordinarily 'departure should be rare and then only for cogent reasons.' Tissot, supra at 44."
PreCode case law made clear that the trial judge could reject the diagnostic center recommendation for a probationary term as a sex offender. See State v. Mickschutz, 101 N.J. Super. 315 (App.Div.1968). See also State v. Tissot, 152 N.J. Super. 42 (App.Div.1977). Even though N.J.S.A. 2C:47-3c provides that in lieu of incarceration the court may, upon recommendation of the Adult Diagnostic and Treatment Center, place defendant on probation with the requirement as a condition of probation that he receive out-patient psychological treatment, the court need not follow the recommendation. State v. Chapman, 95 N.J. 582 (1984) holds that the trial judge can impose a sentence to the custody of the Commissioner of Corrections (general prison population) notwithstanding the Avenel recommendation for sex offender treatment, and that the trial court can impose a parole ineligibility term, N.J.S.A. 2C:43-6b, on a sentence to Avenel as well as to the custody of the Commissioner. See also N.J.S.A. 2C:14-6; 2C:43-6c, -7b, c; 2C:47-3b, c. Given the Chapman analysis of legislative intent with respect to sex offenders, see 95 N.J. at 591-593, we have no hesitation in concluding that the sentencing judge did not commit error in imposing the custodial treatment under N.J.S.A. 2C:47-4a. This is particularly true given the special resentencing and parole considerations available if defendant participates and responds to treatment, see N.J.S.A. 2C:47-4c, -5, and the ability of the Commissioner to transfer defendant to general population if he does not participate or respond. N.J.S.A. 2C:47-4b. See also State v. Chapman, supra, at 590-594, noting that an ineligibility term mandated by statute cannot be relaxed.
Moreover, since the Legislature refined the "presumption of imprisonment" for the first and second degree offenses including the sex offenses governed by Chapter 47, after the effective
date of the Code, see N.J.S.A. 2C:44-1d; State v. Hodge, supra 95 N.J. at 373-374 (1984), we conclude that the Avenel recommendation must always be considered in light of the "presumption." See also N.J.S.A. 2C:47-3a, b; 2C:44-1f(1); 2C:47-4a; State v. Roth, 95 N.J. 334 (1984); State v. Whidby, 204 N.J. Super. ...