State v. KozarskiState v. Kozarski
Defendant was convicted in this court during the year 1973 on a charge of impairing the morals of a minor, specifically, committing the act of fellatio on an 11-year-old boy. Following the conviction the court directed the filing of a second offender accusation pursuant to the statute,
The presentence report discloses that in 1965 defendant was convicted on three counts of debauching the morals of a minor, each count involving fellatio on a young boy. At that time he was classified at Menlo Park as a repetitive compulsive sex offender. For these offenses he received two three-year suspended State Prison sentences and two years’ probation with psychiatric treatment. In June 1968 he was arrested and charged with two counts of lewdness, exposing himsеlf to young girls. He was convicted on the lewdness
At defendant‘s hearing on his Menlo Park classification as a repetitive compulsive sexual offender the State presented testimony by two psychiatrists who participated in his classification, Dr. Martin and Dr. Brancale. Defendant presented no testimony but asserted that his deviant tendencies were caused by a blood metabolism condition known as hypоglycemia. No defense of lack of mental capacity was presented at trial. Both of the state‘s physicians discounted any relationship between the blood condition and the sexual problem. The court was especially impressed with the testimony of Dr. Brancale, who has served as director of Menlo Park for 26 years and who hаs specialized in correctional psychiatry. His classification appears well justified, if not mandatory, and certainly meets the burden of proof imposed upon the prosecution by State v. Horne, supra.
Defendant first moves to disqualify the court because of the court‘s instruction to the prosecutor to file the second offender accusation undеr
The predecessor statute to
The defendant‘s previous record is known before sentence. Where the court intends to sentence defendant as a multiple offendеr, the defendant is entitled to a trial to prove that he is a multiple offender, but otherwise no such trial is necessary. Under section 2A:85-13 as it now stands, numerous accusations have been filed against defendants who thereafter were nevertheless sentenced to no more than the maximum for a first offense. Under this proposed amendment, such accusations will be filed only when necessary. The practice under the
present statute is expensive, takes much time in preparation and trial, slows up sentencing, and keeps defendants in the county jail at county expense for long periods before transfer to State institutions. The Attorney-General and all of the county prosecutors favor the passage of this bill.
The apparent legislative intent was to provide a procedure whereby the accusation would be filed only when a court was actually giving serious consideration to sentencing above the statutory maximum for a first offender. Obviously such instances would be rare because of the broad range of discretion alrеady granted the trial judge under the general sentencing statutes, e.g., robbery while armed, 25 years; rape, 30 years; murder in second degree, 30 years. Defendant asserts that the judge‘s direction to file the second offender accusation gives rise to a compulsion for disqualification under
In that sense, use of the statute by the court is merely a phase of the permissible exercise of discretionary judgment as to what is appropriate punishment for a particular offender within available legal limits. The statute authorizes the court to require the filing of a multiple offender accusation when the court thinks the current offense is such as to warrant imposition of a greater penalty than the maximum allowable by law for that offense. N.J.S.A. 2A:85-13. We find no arbitrary exercise of discretion in that regard below * * *” [at 79-80]
In this case there was no factual dispute as to the applicability of the Multiple Offender Act. The invocation
Defendant next argues that the application of the Multiple Offender Act to him is arbitrary and capricious and is thus constitutionally infirm. The proofs demonstrated that in the last ten years in Camden County the statutе was only invoked once, and then against a criminal abortionist as a fourth offender. Proofs were also offered by the Public Defender‘s office to show that from July 1, 1972 to July 1, 1973 that office handled 72,641 charges against various defendants on a state-wide basis. Only one such charge was leveled under the multiple offender statute. Other evidence produced tended to establish that from the inception of the Public Defender‘s Office in July 1967 until June 30, 1973 the act was invoked only two or three times. It is therefore without question that utilization of the act is extremely rare in this State.
Defendant here claims that the application of the multiple offender statute to his particular case is arbitrary and capricious thеreby denying him equal protection of law under the doctrine of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). There the Supreme Court stated:
There is no doubt as to the facial constitutionality of the multiple offender statute. Similar statutes and other enhanced sentence laws have been enacted in all states and by the Federal Government. See Spencer v. Texas, 385 U.S. 554, 559-560, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Annotation 79 A.L.R.2d 826 (1960). The statutes have withstood attacks asserting they violate constitutional standards of double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection and privileges and immunities. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). The question raised here is whether very infrequent application in itself creates a constitutional infirmity. This argument was considered by the United States Supreme Court in Oyler v. Boles, supra, which declared that something more than infrequent applicаtion must be shown. Justice Clark stated:
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable ... arbitrary classifiсation. Therefore grounds supporting a finding of a denial of equal protection were not alleged. [368 U.S. 456, 82 S.Ct. 506, 7 L.Ed.2d at 453]
Here there has been no showing of intentional and purposeful discrimination through the application of an invidious
Defendant finally argues that invocation of the multiple offender statute is inherently incompatible with a classification compelling sentencing as a compulsive repetitive sex offender under
Our courts have stated the purpose of the Sex Offender Act as follows: The philosophy of the Sex Offender Act is that those who come within it require treatment, not punishment ... The purpose of the act is cure of a defendant. That is the prime justification for the provision of the act that, regardless of the circumstances of the offense or the willingness of the victim, a defendant is subject to confinement until he is “capable of making acceptable social adjustment in the community.” [State v. Mickschutz, 101 N.J. Super. 315, 320 (App. Div. 1968)]
The court in State v. Andrews, 105 N.J. Super. 62 (1969) noted that the “philosophy of the act is treatment, not
This court finds no real conflict between the two acts or between the two social policies enunciated therein by the
Application of the Habitual Offender Act to increase the maximum does afford the state rehabilitative agency with additional time within which a defendant may hopefully be treated and cured. This approаch also lessens the likelihood of release back to society at a time when the hoped for cure has not been obtained and further therapy is indicated. Use of the increased maximum seems most desirable here where defendant has so recently demonstrated recidivistic characteristics after 2 1/2 years’ confinement at thе Diagnostic Center. He has obviously not obtained the goal of compatible adjustment with society. In this case, where defendant is both a sexual and an habitual offender, with a demonstrated capacity for violence, it seems highly consonant with the philosophies of both legislative schemes to afford defendant treatment for a potentially greater period in view of his repetitive characteristics, subject always to the continuing necessity for such therapeutic committment as determined by the institution and the parole board. Defendant is therefore sentenced to a six-year maximum indeterminate sentence at the Rahway Diagnostic Center, a term twice the length of the term provided by statute as the penalty for the misdemeanor for which he stands convicted.