On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Proposed -- None. The opinion of the Court was delivered by Garibaldi, J.
This case, like In re Cannady, 126 N.J. 486, 600 A.2d 459 (1991), also decided today, addresses the issue of whether the Public Defender Act, N.J.S.A. 2A:158A-1 to -25, requires the Office of the Public Defender (OPD) to provide expert services for an indigent defendant whom it does not represent. In the present case, however, a pro bono private attorney rather than a paid private attorney represents defendant. Despite that difference, we reach the same conclusion as we did in Cannady, namely, that the OPD, rather than the County, is authorized to pay for the services.
Defendant, Clifford Kauffman, represented pro bono by private counsel, pled guilty to third-degree aggravated sexual contact. Prior to sentencing, a State psychologist evaluated Kauffman and determined that he fell within the purview of the Adult Diagnostic and Treatment Center Act, N.J.S.A. 2C:47-1 to -7, commonly known as the "Sex Offender Act." Those who fall under the Sex Offender Act are diagnosed as suffering from repetitive, compulsive behavior, and may be sentenced to the Avenel Adult Diagnostic and Treatment Center. N.J.S.A.
2C:47-3(a). Kauffman's counsel filed a motion to compel the OPD to pay for an independent psychological examination of Kauffman, in order to contest the findings of the State's psychologist.
The trial court granted Kauffman's motion. It concluded that Kauffman had a right to an independent psychological evaluation and that the OPD must finance that evaluation. The court ruled, however, that because the OPD must pay for the service, it should have the right to designate the expert and determine his or her fee.
David Bogacki, Ph.D., evaluated Kauffman and testified at his sentencing hearing. Dr. Bogacki has since sent bills totalling $1,100 to the OPD. Although the OPD disputes Kauffman's indigency, it does not dispute the necessity of Dr. Bogacki's services.
The OPD moved for leave to appeal the trial court's order, which the Appellate Division denied. We granted the OPD's motion for leave to appeal, 126 N.J. 322, 598 A.2d 882 (1991).
In In re Cannady, 126 N.J. 486, 600 A.2d 459 (1991), also decided today, we held that the Public Defender Act mandates that the OPD pay for expert services that are necessary to any indigent defendant's case. In doing so, we rejected the notion that only indigents represented by the Public Defender may obtain funding for ancillary services from the OPD. Id. at 498, 600 A.2d at 464.
In Cannady, we determined that the language of the Act supports our conclusion that the OPD is responsible for the ancillary costs associated with the defense of an indigent represented by outside counsel. Id. at 491-93, 600 A.2d at 461-462. We noted that the Act directs the OPD to provide ...