On appeal from final decision of the Commissioner, New Jersey Department of Corrections.
Morton I. Greenberg, J .h. Coleman and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Alexander Artway, an inmate incarcerated at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, appeals from a final decision of the Commissioner, New Jersey Department of Corrections, ordering him transferred from Rahway State Prison to the ADTC to serve the remainder of his sentence imposed under N.J.S.A. 2A:143-1 and N.J.S.A. 2A:164-3, et seq.
On appeal, Artway contends that he is constitutionally entitled to (1) a cursory written statement of reasons for his retransfer back to ADTC; (2) not be retransferred back to ADTC if the only reason for doing so is to prevent him from being resentenced to a shorter term; and (3) not be punished for refusing to talk to ADTC guidance counselors.
Artway was sentenced on March 27, 1975, to an indeterminate term of 20 years following his conviction for sodomy. He was sentenced pursuant to N.J.S.A. 2A:164-1, et seq. (repealed by L. 1978, c. 95, § 2C:98-2, eff. Sept. 1, 1979). In February 1976, Artway was transferred to the ADTC where he remained for over two years. On May 2, 1978, he was transferred to the general prison population pursuant to Department of Corrections Administrative Plan Manual Standard # 857 after review by the Institutional Classification Committee. Artway's transfer was effected by reason of his refusal to participate in treatment.
Since Artway was a 2A sex offender, transferred out of ADTC, his parole eligibility was also determined under the old code, N.J.S.A. 2A:164-1, et seq. Pursuant to that provision of the law, Artway could only become eligible for parole upon review of the Special Classification Review Board (SCRB) at ADTC. The jurisdiction of SCRB continued for parole purposes. However, with the enactment of the new criminal code, N.J.S.A. 2C:1-1, et seq., sex offenders transferred out of ADTC are treated as ordinary offenders for parole eligibility purposes. Thus, the parole eligibility status of such inmates confined
under 2C is determined under N.J.S.A. 30:4-123.51(a) rather than the procedure set forth in N.J.S.A. 2A:164-1, et seq.
In Gerald v. N.J. Dept. of Corrections, 201 N.J. Super. 438 (App.Div.1985), we determined that for purposes of Title 2A, sex offenders transferred out of ADTC are to be treated in the same manner as Title 2C sex offenders. We concluded that the transfer of Title 2A sex offenders out of ADTC constitutes good cause for resentencing the offender under Title 2C. The Commissioner appealed Gerald to the Supreme Court, which affirmed the Appellate Division, with the following modification:
We therefore must acknowledge that the Commissioner's determination to transfer the respondent to the state prison may have been based, among other things, upon the possibility or likelihood that respondent would remain confined for the full maximum time under his original sentence. The Commissioner may also have been influenced by the standards for release of sex offenders, N.J.S.A. 2C:47-5, N.J.S.A. 30:4-123.51(e), which are materially different from the standards that will in fact control the respondent's time served in prison and the criteria for his release, N.J.S.A. 30:4-123.53. These considerations lead us to conclude that the Commissioner may not have adequately perceived the standards that should have governed his discretion to transfer the respondent from ADTC to the state prison. The transfer issue in respondent's case should therefore be reconsidered and redetermined in light of the appropriate legal guidelines. (Cites omitted).
Accordingly, the Commissioner of the Department of Corrections is hereby given leave to reconsider whether respondent should have been transferred from the ADTC to the state prison. Upon such reconsideration, he may determine that the overall intendment of the original Title 2A sentence remains operative and reasonably suggests that respondent should not have been transferred or should now be retransferred from the state prison to the Adult Diagnostic and Treatment Center to serve the original sentence with attendant treatment. However, if the Commissioner determines not to reconsider the matter or not to transfer the respondent, then respondent shall be sentenced as provided herein. [ Gerald v. N.J. Dept. of Corrections, 102 N.J. 435, 438-440 (1986)].
Upon receipt of the Supreme Court's opinion in Gerald, Artway filed this appeal whereupon the State cross-motioned to dismiss the appeal for failure ...