This matter comes before the court for sentencing of John Logan in accordance with N.J.S.A. 2C:47-1, commonly known as the Sex Offender Act. This case represents a question of first impression in New Jersey, i.e., whether a defendant's willful refusal to complete a court-ordered physical and psychological examination at the Adult Diagnostic and Treatment Center ("ADTC") for purposes of sentencing under the Sex Offender Act operates as a waiver of defendant's right when the ADTC cannot make a finding that defendant is repetitive and compulsive due to defendant's failure to submit to the examination.
On February 22, 1990, John Logan was convicted by a jury of two counts of sexual assault (second degree), one count of
aggravated sexual assault (first degree), one count of aggravated criminal sexual contact (third degree) and endangering the welfare of a child (third degree), which charges involved sexual assaults against one individual over a protracted period of time.
Since defendant was convicted of crimes of aggravated sexual assault, he was ordered to submit to a psychiatric examination at the Adult Diagnostic Psychiatric Center, Avenel, New Jersey, on April 25, 1990 pursuant to N.J.S.A. 2C:47-1. Subsequently, a letter was received from ADTC stating that defendant's evaluation could not be completed because Logan declined to be interviewed or take the written testing. The letter noted the purpose and procedures for the evaluation that were explained to defendant by the supervisor of the outpatient department. Defendant, however, remained steadfast in that he did not wish to be interviewed or take psychological testing.
On June 1, 1990, this court held a summary contempt proceeding for a contempt in the face of the court pursuant to R. 1:10-1, when defendant stated in open court that he would never comply with the terms of the order. Defendant was found to be in contempt and sentenced to six months in the county jail. Subsequent to this contempt adjudication, a second report was received from the ADTC which stated that defendant's behavior was repetitive based on statements made by the victim that she was sexually assaulted on multiple occasions over approximately a three-year period. The report went on to state that a formal psychological evaluation would be necessary to determine whether or not the preponderance of evidence necessary for a finding of sexual compulsion could be established.
This court is now faced with the difficult task of fashioning an appropriate sentence in accordance with the code without the needed findings by the ADTC. The procedure for sentencing to ADTC is outlined in Sentencing Manual for Judges (1988).
5.4 Sex Offenders -- The Adult Diagnostic and Treatment Center
Whenever a person is convicted of aggravated sexual assault, sexual assault, or aggravated criminal sexual contact, or an attempt to commit any such crime, the judge shall order that such person be referred to the Adult Diagnostic and Treatment Center (ADTC or "the center") for a period necessary to complete a physical and psychological examination, said period not to exceed 10 days. N.J.S.A. 2C:47-1. The referral order is required to contain a determination of the person's legal settlement. Ibid.; see N.J.S.A. 30:4-49 et seq.
An essential prerequisite to sentencing an offender to the ADTC for a program of specialized treatment is that the examination reveal that the "offender's conduct was characterized by a pattern of repetitive and compulsive behavior." N.J.S.A. 2C:47-3(a). Upon such a finding the court may, upon the recommendation of the ADTC, sentence the offender to the center for a program of specialized treatment for his mental condition. Ibid. No person may be sentenced to the ADTC in the ...