The Cumberland County Prosecutor moves to compel the evaluation and sentencing of defendant, Adam Marrero, in accordance with the New Jersey Code of Criminal Justice N.J.S.A. 2C:47-1 et seq.
On April 4, 1988, defendant, Adam Marrero, was indicted by a Cumberland County Grand Jury on charges of sexual assault and terroristic threats. He pled guilty to the first count of the indictment charging him with second degree sexual assault. In the usual course of events defendant was to be evaluated at Avenel pursuant to N.J.S.A. 2C:47-1 of the New Jersey Code of Criminal Justice. On August 29, 1988 and prior to his being transported for this examination, this defendant was arrested and charged with murder under indictment no. 89-04-352.
The Honorable Paul R. Porreca, J.S.C., then in charge of this case, granted an ex parte request to have the Avenel evaluation postponed. The State now moves to compel defendant's evaluation and sentencing.
Counsel for the defense argues that to compel sentencing would place defendant in a precarious position. Since he has pled guilty to second degree sexual assault, the court must order defendant's referral to the Adult Diagnostic and Treatment
Center for evaluation. N.J.S.A. 2C:47-1 It is then within the court's discretion whether to sentence defendant to "a program of specialized treatment for his mental condition." N.J.S.A. 2C:47-3. Moreover, it is a requirement that in order to be considered for "specialized treatment," defendant must submit to a complete psychological evaluation in accordance with N.J.S.A. 2C:47-1. It is asserted by defense counsel that there is a strong possibility that defendant may incriminate himself during the evaluation in regard to the murder charges pending against him.
If defendant refuses to participate in the examination while at Avenel to protect his Fifth Amendment rights, he may then be excluded from the treatment available to him under the New Jersey Sex Offenders Act.
The State concedes that defense counsel's concerns are legitimate, however, it submits that these issues can be resolved between counsel and his client and, should the need arise, ultimately by the trial judge in the homicide case.
The question presented here is whether compelling examination and sentencing at this time would violate defendant's Fifth Amendment rights against self-incrimination. The self-incrimination clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment, Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988, 2991, 92 L. Ed. 2d 296 (1986) (quoting Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)) provides that "no person shall be compelled in any criminal case to be a witness against himself." The Supreme Court has firmly established that the privilege may be asserted when the need arises to prevent revelation of self-incriminating information that could be used in future criminal proceedings. The ...