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State v. Morrissey


January 19, 2010


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. I-08-06-01047.

Per curiam.



Submitted December 15, 2009

Before Judges Wefing and Messano.

Defendant appeals, pursuant to leave granted, from an order entered by the trial judge denying his request to postpone his sentencing. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant was indicted under a twelve-count indictment charging him with two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a; one count of sexual assault, N.J.S.A. 2C:14-2c; four counts of sexual assault, N.J.S.A. 2C:14-2b; and five counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. The indictment named four victims: N.S., D.S., K.A. and M.M.

The counts were severed for purposes of trial; those counts alleging offenses against N.S. and D.S. were tried in January 2009, and defendant was found guilty on all charges, specifically of one count of aggravated sexual assault, two counts of sexual assault, and two counts of endangering the welfare of a minor.

Defendant appeared before the trial judge in May 2009 in connection with a motion relating to the remaining counts and to request that his sentencing be postponed until the trial of the remaining counts. The State submitted on the question, and the trial judge did not immediately decide the matter.

The question was renewed in July. Defense counsel argued that it was unfair to his client to proceed to sentencing on these counts until the remaining counts were resolved. He noted that his client would be required to be evaluated at the Adult Diagnostic and Treatment Center at Avenel before he could be sentenced and that his ability to participate in that evaluation would be severely restricted because of the pending charges.

He also noted another potential prejudice. If defendant were to be convicted in separate proceedings and sentenced on separate dates to concurrent sentences, defendant would only be entitled to gap-time credits in computing the actual time to be served.

At this second argument, the State opposed defendant's request, noting that the victims wanted closure. The trial judge ultimately denied defendant's motion but gave no reasons for doing so; we note, however, that during the course of the argument, the trial judge said he wished to transfer the trial of the remaining counts to another judge for trial and that no other judge could sentence defendant on these counts since he had presided at the trial. We granted defendant's motion for leave to appeal.

We are satisfied that for reasons both of fairness to defendant and judicial economy, defendant's request should have been granted. If the matter were to proceed as the State requested and the trial judge concurred, and defendant were to be convicted at each of the subsequent proceedings, defendant would be sentenced three times, the remaining counts now being scheduled for separate trials for the two remaining victims.

This would involve the preparation of three separate presentence reports, and defendant would have the right to present three separate sentencing arguments, both to the trial court and on appeals to this court. Certain issues would undoubtedly overlap. We can perceive no sound reason to require such duplication of effort, either on the trial level or on this level. It is not required for reasons of safety; defendant is incarcerated, his bail having been immediately revoked when the first jury returned its verdict. There is no possibility of his being released.

We also recognize the dilemma defendant would have to face when he would appear at Avenel while still facing charges of having committed sexual offenses. Requiring his full participation in an evaluation to determine whether he could properly be characterized as a repetitive and compulsive offender would jeopardize his right to remain silent in the face of these open charges. We agree with the views expressed in State v. Marrero, 239 N.J. Super. 119, 123 (Law Div. 1989), in which the trial court denied the State's motion to compel defendant to submit to an evaluation at Avenel while he faced prosecution for a charge of murder.

This court finds that if this defendant were compelled to undergo evaluation and sentencing defendant would be offered a Hobson's choice to either cooperate fully with the ADTC and possibly incriminate himself or alternatively refuse to undergo evaluation and the specialized treatment offered under New Jersey's sex offender law.

Such a choice is repugnant to the constitutional guarantee embodied in the Fifth Amendment right against self-incrimination.

The prosecutor, recognizing the dilemma, has suggested that we modify the procedure followed in connection with the preparation of an evaluative Avenel report to permit defense counsel to move to redact potentially incriminating information before it is supplied to the prosecutor. We reject his proposal for two reasons. It does not comply with Rule 3:21-3, and we lack the authority to authorize a departure from that rule. In addition, we consider it little more than an attempt to ameliorate the potential for harm after a defendant may have provided incriminating information. The surest protection, however, is not to place defendant in a situation leading to his incriminating himself.

The order under review is reversed, and the matter is remanded for further proceedings in accordance with this opinion.


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