On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Long, Baime and Thomas. The opinion of the court was delivered by Baime, J.A.D.
This appeal presents novel questions concerning the procedures and standards to be applied in reviewing sex offender sentences under N.J.S.A. 2C:47-4c. That statute permits the Commissioner of the Department of Corrections to move before the sentencing court for modification of a period of parole ineligibility originally imposed upon a sex offender committed to the Adult Diagnostic and Treatment Center (ADTC). At issue is whether the defendant is entitled to be present or represented by counsel at the hearing on the motion, and what standards are to be applied by the court in determining whether a modification of sentence is warranted.
The facts are not in dispute. Defendant sexually abused his young daughter over a six-year period between 1976 and 1981. We need not recite the sordid details. Suffice it to say, the victim was repeatedly subjected to intercourse, fellatio and cunnilingus. These acts commenced when the victim was eight years old and continued until she was 14, when she fled from the family home in order to escape defendant's unnatural attentions. Ultimately, defendant pleaded guilty to aggravated sexual assault (N.J.S.A. 2C:14-2a) and was sentenced to the ADTC for twenty years. Based upon his finding that the aggravating factors substantially outweighed the mitigating circumstances, the Law Division Judge imposed a ten-year period of parole ineligibility. See N.J.S.A. 2C:43-6b. We affirmed the judgment and subsequent order denying post-conviction relief in separate unreported opinions.
On September 17, 1990, the Commissioner filed a motion for modification of the sentence pursuant to N.J.S.A. 2C:47-4c. The motion was supported by the recommendation of the Special Classification Review Board (SCRB). Accompanying the motion were affidavits submitted by a member of the SCRB and by the Acting Superintendent of the ADTC. In conclusory fashion, these affidavits indicated that defendant "ha[d] been effectively treated and rehabilitated," that further incarceration was "counter-productive to [his] progress in therapy," and that "relapse prevention programs" were available as part of "parole release."
Emphasizing that only the Commissioner was authorized to file the motion, the Law Division Judge conducted the hearing without the presence of defendant or his attorney. Following argument by a deputy attorney general who represented the Department of Corrections, the Judge denied the Commissioner's motion. This appeal followed. We have expedited Disposition of this case because defendant's minimum term expires on May 13, 1992.
Before addressing the issues presented, we briefly describe the predecessor legislation and the present statutory scheme. The legislative history begins with a joint resolution approved by the Senate and Assembly in 1949, creating a bipartisan commission to examine questions relating to the treatment of habitual sex offenders. See Report and Recommendations of Commission on the Habitual Sex Offender (1950). Based upon the thesis that many sex offenses have their genesis in "abnormal mental illness," the Commission suggested that offenders be subject to indeterminate sentences and intensive treatment. State v. Wingler, 25 N.J. 161, 170-71, 135 A.2d 468 (1957). The idea was that sex offenders should be "committed for treatment to a mental or correctional institution" for indeterminate terms and released when "capable of making 'an acceptable
social adjustment.'" Id. at 171, 135 A.2d 468. In response, the Legislature adopted the Sex Offender Act (N.J.S.A. 2A:164-3 through -13), which endorsed the ...