On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Michels, Gaulkin and Stern. The opinion of the Court was delivered by Michels, P.J.A.D.
Plaintiff State of New Jersey, Department of Corrections appeals from part of an order of the Law Division which directed that defendant Lawrence Falcone "be transported from the Morris County jail to the State Diagnostic & Treatment Center at Avenel" within ten days. The pivotal issue raised by this appeal is whether the sentencing court had the power to direct the immediate admission of defendant to the Adult Diagnostic and Treatment Center (ADTC). We are thoroughly convinced that it did not and, therefore, reverse the order under review.
A brief overview of the procedural history and factual background giving rise to this appeal is necessary in order to understand the result we reach here today. Following plea negotiations, defendant pleaded guilty to four counts of criminal sexual assault, in violation of N.J.S.A. 2C:14-2b. The State, for its part of the plea agreement, recommended the dismissal of the remaining eleven counts of the indictment. In accordance with this plea agreement, on December 13, 1985, defendant was sentenced to an indeterminate term, not to exceed ten
years, to be served in the ADTC, pursuant to N.J.S.A. 2C:47-3. When he imposed sentence, the trial judge specifically noted:
I am satisfied that Lawrence needs considerable help to help himself. And I'm also satisfied that the appropriate state institution for the sentence is the Adult Diagnostic and Treatment Center.
[I]t's the order of this Court that he be immediately sent to the Diagnostic Center. (Emphasis supplied)].
On January 30, 1986, defendant filed a motion in which he sought to be immediately transferred from the Morris County Jail to the ADTC or, alternatively, to be released on bail pending the availability of space at the ADTC. The State opposed this motion on the grounds that: (1) the ADTC was filled to capacity; and (2) it would be highly inequitable to admit defendant, out of sequence, from his position on the institution's "waiting list". On the return date of this motion, February 14, 1986, the trial court initially noted that it had erred in sentencing defendant to an indeterminate, rather than a determinate term at the ADTC, and corrected the sentence to provide:
Defendant is committed for specialized treatment to the Adult Diagnostic and Treatment Center at Avenel, New Jersey, the institution designated by the Commissioner, Department of Corrections, for a determinate term of four (4) years, the presumptive term for third-degree crimes, on Count Three; and a determinate term of four (4) years, the presumptive term for third-degree crimes, on Count Four. The sentences on Counts Three and Four shall run concurrently, in accordance with the Plea Agreement.
The defendant is further committed for specialized treatment to the Adult Diagnostic and Treatment Center at Avenel, New Jersey, the institution designated by the Commissioner, Department of Corrections, for a determinate term of four (4) years, the presumptive term for third-degree crimes, on Count Six; and a determinate term of four (4) years, the presumptive term for third-degree crimes, on Count Nine. The sentences on Counts Six and Nine are to run concurrently, in accordance with the Plea Agreement. The sentences on Counts Six and Nine are consecutive to the sentences imposed on Counts Three and Four. (Emphasis in original).
In imposing this corrected sentence, the trial court noted it felt "very strongly that this sentence should be served at the Adult Diagnostic and Treatment Center, where defendant [could] hopefully receive . . . 'specialized treatment'." Thereafter,
the trial court again corrected the sentence to reflect "a presumptive 4 year term on each of Counts 3, 4, 6 and 9 with the sentence on Counts 3 and 4 to be concurrent with the sentence of Counts 6 and 9 but the sentence of Counts 6 and 9 is consecutive to that imposed on Counts 3 and 4." The trial court then denied defendant's motion to be released on probation or on bail. However, it determined that some relief should be granted and, therefore, further ordered that "within ten (10) days, defendant shall be transported from the Morris County jail to the State Diagnostic & Treatment Center at Avenel."
The State appealed from that portion of the order which required defendant's admission to the ADTC within 10 days and sought a stay of the order pending appeal. Although this relief was denied by the trial court, we stayed the order of admission and accelerated this appeal.
Before turning to the State's challenge to the authority of the sentencing court to order the immediate transfer of defendant to the ADTC, we think it is important to point out that, at all times since imposition of his original sentence, defendant has been a State Prison inmate, confined in the Morris County Jail in Morristown, New Jersey, while awaiting an opening at the ADTC. This situation has resulted because, from the time of the imposition of his sentence in December 1985, the ADTC has been filled to capacity. For many years, this institution had a rated or intended capacity of 180 inmates, which was based upon the number of beds available in single-man cells. However, since 1978, the total rated capacity of the ADTC has been increased to 228 inmates, as a result of the addition of 48 new beds at the facility. Moreover, conversion of storage, classroom and dayroom areas into dormitory space has further raised the operational capacity of the ADTC to 362 inmates.
Due to the fact that the ADTC is filled to capacity (and has apparently been for some time), additional inmates are not being accepted regularly at the facility. As a result of this situation, a Senior Correction Officer at the ADTC maintains a
"waiting list" of sex offenders who have been sentenced to the facility. This list is submitted, on a weekly basis, to both the Superintendent of the ADTC and the Deputy Director of the Division of Adult Institutions at the New Jersey Department of Corrections. As of January 10, 1986, the "waiting list" reflected that a total of 75 convicted sex offenders were incarcerated in county jails, awaiting admission to the ADTC, pending the availability of space. Some of these individuals have been awaiting admission to the facility since May and June 1985. Following his initial sentencing in December 1985, defendant was number 66 on the "waiting list". However, in February 1986, at the time of the motion for change of sentence was brought, defendant had moved up to number 59. At oral argument, counsel informed us that defendant had advanced to number 25 on the waiting list.
Inmates gain admission to the ADTC as space becomes available in accordance with their position on the "waiting list". Generally, vacancies occur when inmates are released from the ADTC on parole. Exceptions from this admission scheme may be made, however, in the discretion of State officials, when: (1) an inmate suffers from a serious medical problem which the county is unable to address; or (2) an inmate poses a management problem to the county; or (3) an inmate is in physical danger, as a result of other inmates at a county facility. There is no dispute that these exceptions are inapplicable to defendant.
As a result of the increasing need for additional space at the ADTC, a new brick and mortar facility has been opened on the grounds at Avenel. This new building houses an additional 48 inmates and has increased the rated capacity of the ADTC from 180 to 228 inmates. In addition, discussions have recently been undertaken to initiate further construction at the ADTC, in order to expand the inmate capacity. This expansion would seek to solve both present and future needs of the institution. ...