On appeal from the Department of Corrections.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 3, 2003
Appellant is an inmate currently incarcerated at the Adult Diagnostic and Treatment Center in Avenel. He is serving a five-to-eight-year sentence for sexual assault. He appeals the final administrative decision of the Department of Corrections rendered on December 10, 2002 which removed commutation credits because of his alleged failure to fully cooperate with seX offender treatment pursuant to N.J.S.A. 2C:47-8.*fn1
Because inmates have a protected liberty interest in"good time" credits, an offender's credits may not be reduced pursuant to this section because of his refusal to disclose during treatment the details of sex offenses that have not been the subject of a criminal prosecution. See Bender v. Dept. of Corr., 356 N.J. Super. 432, 439, 443-44 (App. Div. 2003). In Bender, we relied on McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), which held that such a course of action would violate the inmate's Fifth Amendment privilege against compulsory self-incrimination. This case presents a variation on our Bender holding.
Appellant was found guilty on January 21, 1999. He was sentenced on January 28, 2000 to the Avenel facility because of the sexual nature of his crimes. He eventually was penalized with loss of commutation and work credits from September 2001 through 2002, apparently about 85 days of credits, for not cooperating with the treatment program. He exhausted his administrative remedies and on February 21, 2003 filed this appeal from denial of his credits.
In the meantime, appellant had taken an appeal from his January 28, 2000 criminal conviction. We affirmed his conviction in an unpublished opinion dated May 14, 2002. The Supreme Court denied appellant's petition for certification on June 5, 2003.
Appellant makes this contention with respect to the denial of his commutation credits:
Appellant contends that, despite his plea of not guilty and his denial of committing the crimes, he was sentenced to Avenel for specialized treatment by the Superior Court of New Jersey, Monmouth County, pursuant to N.J.S.A. 2C:47-3. However, to date, appellant has been enrolled and"fully cooperates with all treatment offered to him," with the exception of discussing the offense for which he was tried and convicted by a jury, the appellant did not commit the crimes, and therefore, cannot admit to, nor discuss the specific details of his crimes. On the other hand, the appellant does fully cooperate with all treatment offered by discussing everything about his life, save admitting to something which he, in fact, did not do. The Department of Corrections has, therefore, frustrated the appellant's efforts to achieve compliance with the statute.
Thus, at least one of appellant's claims on this appeal is that the loss of credits was caused by insisting on his privilege against self-incrimination in the context of his then-pending appeal and continued protest of his innocence.
The appellate process as to appellant's convictions for these sexual offenses was not final until his petition for certification was denied on June 5, 2003. We now conclude that appellant retained his privilege against self-incrimination until he had exhausted the direct appeal process from his criminal conviction. He was not required to discuss the crimes for which he was convicted until his petition for certification was denied.
Under our jurisprudence, a defendant's privilege against self-incrimination does not expire until sentencing and upon exhaustion of his direct appellate remedies. Judge (now Justice) Long stated in State v. Nunez, 209 N.J. Super. 127, 132 (App. Div. 1986), that since defendant"had yet to be sentenced and to exhaust his appellate remedies, his conviction was not final" and he could validly assert his privilege against self-incrimination. See also State v. Tyson, 43 N.J. 411, 416 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965); State v. Craig, 107 N.J. Super. 196, 199 (App. Div.), certif. denied, 55 N.J. 169 (1969); State v. Robinson, 253 N.J. Super. 346, 366 (App. Div.), certif. denied, 130 N.J. 6 (1992); State v. Fort, 197 N.J. Super. 113, 117 (App. Div. 1984), certif. denied, 101 N.J. 213, rev'd on other grounds, 101 N.J. 123 (1985).
The general rule accords with our jurisprudence. See 5 John Henry Wigmore, Evidence § 2279 (McNaughton rev. 1961 & Supp. 2003). We find an articulate summary of the rule by the Oregon Supreme Court in State v. Barone, 986 P.2d 5, 20-21 (Or. 1999), cert. denied, 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000), cited with approval in John W. Strong, et. al., McCormick on ...