State v. CavanaughState v. Cavanaugh
All the defendants in the three cases listed above pleaded guilty to an act of lewdness under
Three statutes are involved:
(1)
Any person who commits open lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor.
(2) Two provisions of the Code:
Any person who is under sentence of imprisonment on the effective date of the code for an offense committed prior to the effective date which has been eliminated by the code or who has been sentenced to a maximum term of imprisonment for an offense committed prior to the effective date which exceeds the maximum established by the code for such an offense and who, on said effective date, has not had his sentence suspended or been paroled or discharged, may move to have his sentence reviewed by the sentencing court and the court may impose a new sentence, for good cause shown as though the person had
been convicted under the code, except that no period of detention or supervision shall be increased as a result of such resentencing.
and
A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed. `Lewd acts’ shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.
Under the Code a disorderly person‘s offense carries a possible six-month term.
(3) The Sex Offender Act,
Defendants’ application for resentence under
At the outset it must be noted that
As a technical matter, defendants are not entitled to bail. But their argument is that if they were convicted under
Crucial to defendants’ position is the contention that
The question of which offenses under the Code parallel or are congruent with pre-Code offenses permeates many applications
State v. Brenner, 132 N.J.L. 607 (E. & A. 1945), narrates the history of
Originally the Crimes Act [L. 1898, c. 235, § 51] condemned only `open lewdness, or any notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people.’ [at 609]
The 1906 amendment [L. 1906, c. 71, § 1], for the first time, proscribed private acts of “lewdness or carnal indecency.”
Lewdness, within the concept of the statute, imports some degree of sexual aberration or impurity. It denotes gross and wanton indecency in the sexual relations. [Id. at 610]
Under this definition a broad spectrum of conduct came within the statutory proscription. “Handling a child‘s private parts, coupled with exposure, was held both contributing to the delinquency of a minor and a violation of the statute.” State v. Blount, 60 N.J. 23 (1972). Two years later State v. Dorsey, 64 N.J. 428 (1974), narrowed the scope of the statute. There defendants were charged with private lewdness for unbuttoning a young lady‘s dress and placing hands upon her breast, thighs and legs. This was held error because of the lack of preciseness of
This decision [State v. Brenner, 132 N.J.L. 607 (E. & A. 1944)] thus holds that the statute, N.J.S.A. 2A:115-1, does not include acts of adultery or fornication, and
that conduct will not necessarily amount to private lewdness merely because, had the act been committed openly, it would be considered public lewdness. The basis for excluding adultery and fornication from the reach of the statute condemning private lewdness is the fact that these kinds of sexual misconduct have been made crimes by separate enactments, viz, N.J.S.A. 2A:88-1 (adultery) and N.J.S.A. 2A:110-1 (fornication). We accept this interpretation, and note that the same may be said as to prostitution. N.J.S.A. 2A:133-1 et seq. [at 431-432]
He noted also:
In the proposed New Jersey Penal Code, submitted as part of the Commission‘s Final Report (Oct. 1971), there is no reference to private lewdness as such. Open lewdness is made a disorderly persons offense, § 2C:34-1, as is indecent exposure, § 2C:14-5. Conduct likely to debauch or impair the morals of a minor is proscribed by §§ 2C:14-3 and 2C:24-4. [at 433]
He continued:
Section 2C:14-4 of the proposed New Jersey Penal Code is entitled `Sexual Assault’ and would seem exactly designed to cover the kind of censurable conduct of which the jury found this defendant to have been guilty. Under that proposed enactment as well, defendant‘s conduct here would be deemed a disorderly persons offense. [at 434]
The footnote to this passage quotes not the section which is presently under consideration as
Despite Dorsey, the law was not entirely clarified. It was followed by State v. Treat, 130 N.J. Super. 305 (App.Div. 1974), in which fellatio was held within the ban of the statute in an opinion citing Dorsey. In State v. DeLellis, 137 N.J. Super. 309 (1975), the Appellate Division ruled as it had in Treat, but was reversed without opinion in 70 N.J. 526 (1976). Yet, State v. J.O., 69 N.J. 574 (1976), holding that fellatio between consenting adults in private was not proscribed by
Analysis of the facts in the three cases at bar, of which more later, in the light of Dorsey, raises questions as to the basis upon which defendants pleaded “guilty” and upon which the pleas were accepted. In the case of DeGaglia there was a plea bargain, as the result of which a charge of larceny from the person was recommended for dismissal. Cavanaugh was charged with both lewdness and impairing the morals of a minor under
Appraisal of the factual situation in these cases leads to the conclusion that the pleas were given and accepted because the conduct fitted into a broad, generally accepted definition of “lewdness.”
The process of determining congruence of 2A and 2C offenses involves more than a matching of the indictment in the 2A offense against the claimed Code offenses. Certainly, in cases such as these, where the scope of the 2A statute is not entirely clear and where the pleas were given and accepted for considerations acceptable to both prosecutor and defendant, conscientious discharge of our duties, having regard for the public welfare, requires that we subject applicants’ conduct to scrutiny before answering the question of congruence.
Preliminary review indicates that, at least prima facie, what they did came within some aspect of “Criminal Sexual Contact,”
A hearing is required to determine which 2C offense is appropriate to each applicant‘s conduct. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1975). Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Avant v. Clifford, 67 N.J. 496 (1975); People v. Ramirez, 25 Cal.3d 260, 158 Cal. Rptr. 316, 599 P.2d 622 (Sup.Ct. 1979);
Additionally, an applicant for review of sentence must show not merely that he is serving a sentence, the maximum of which is greater than the maximum of the comparable 2C offense, but that there is “good cause” for the resentencing. Here, it is contended, that “good cause” is the fact that the equivalent 2C offense carries only a six-month term. This, however, is predicated upon an assumption which may not be borne out when the facts are explored.
In our view, “good cause” has broader application which prevents release of applicants without hearing in cases such as these. See State v. Rothfeld, 170 N.J. Super. 514 (Law Div. 1979). We must bear in mind the purposes of the Sex Offender Act, described in State v. Wingler, 25 N.J. 161 (1957), as a statute in which
... the Legislature has, with sufficient cause, classified certain repetitive, compulsive sex offenders as falling within a separate group urgently requiring, for the protection of society as well as the offenders themselves, special confinement and treatment until they are capable of making acceptable social adjustments, but in no event beyond the maximum term fixed by law. [at 175]
There are two interests — that of society in protection against compulsive sex offenders and that of the person being treated in the treatment. Cursory review of the records of all three applicants shows that both interests require more than perfunctory consideration. We cannot forget that not every sex offender, but only those who are “repetitive and compulsive,” are given sex offender treatment.
Joseph Cavanaugh pled “guilty” to a charge under
With respect to Von Graevenitz, the victim‘s version of the facts, as shown by the ADTC report, is: On August 11, 1978, the defendant “streaked” into the 7-Eleven Store in which complainant was employed, exposed himself and said to her that he would not leave until she had shown him one of her breasts. The defendant grabbed her and tried to force her down and the victim fought back and knocked off the defendant‘s glasses. Defendant left a dollar bill, saying that that was for a phone call to the police.
The defendant agrees that he “streaked” into the 7-Eleven Store. He states that the victim indicated that she would call the police if he returned; that he handed the victim the money for calling the police, and that the victim struck his arm and knocked off his glasses when he handed her the money. He did not admit knocking her down while attempting to see her breasts. He, too, has a history of prior exposure.
DeGaglia was charged with “Robbery,” amended to “Larceny from the Person” and “Open Lewdness.” On June 5, 1978 he
The official version of the offense in the presentence report indicated that he forced the victim into an alley “where he began unbuttoning her blouse and her brassiere. When she protested, he told her that if she did not remain quiet, he would rip her clothing off. She stated that he began fondling her breasts, despite her protests.” The victim also stated that he took $40 from her wallet. The defendant‘s version is that he thought she was easy so he started “feeling her up” and that he asked her for some money and she gave him $40. He also has a history of prior sexual offenses.
The ADTC report, dated June 1979, states of him “Continued in-patient treatment is recommended at this time and accepted by resident.” It shows that he has made significant therapeutic progress, and with concentrated effort ... on problem areas, it is felt that he will be ready for parole consideration in the near future.”
The conclusion is that the applications for bail will be denied and hearings held December 18, 1979, as scheduled, for the purpose of resentencing the defendants. Included will be consideration of whether the defendants should not be forthwith released or, if released, placed under appropriate supervision.