must first be confined in a facility designated by the
Commissioner. At least 30 days prior to the date before the
offender has five years to the expiration of either his
sentence or, if imposed, of any mandatory minimum term,
the Department of Corrections must complete another
psychological examination to determine whether the
offender is amenable and willing to participate in sex
offender treatment. If the report reveals that the offender is
amenable and willing to participate, he will be transferred
to ADTC as soon as practicable. If the report reveals that
the offender is either not amenable or not willing to
participate in sex offender treatment, the offender can not
be transferred to ADTC. N.J.S.A. 2C:47-3h(2, 3). In such
a case, the offender is precluded from receiving good or
work time credits. N.J.S.A. 2C:47-3i. In addition, the
offender is only entitled to treatment while incarcerated in
ADTC. N.J.S.A. 2C:47-3k; see State v. Howard, supra
(offender not entitled to treatment while in county jail).
An offender sentenced to a term of life imprisonment
without parole shall not be confined in ADTC, but in a
facility designated by the Commissioner. N.J.S.A. 2C:43-
7j.
If the examination reveals that the offender is repetitive
and compulsive, is amenable to sex offender treatment, but
is unwilling to participate in such treatment, the offender is
sentenced as if he is a sex offender but not sent to ADTC.
N.J.S.A. 2C:47-3f. The offender is precluded from
receiving good or work time credits. N.J.S.A. 2C:47-3g.
The offender is also eligible for parole only when the
requirements of N.J.S.A. 2C:45-7 are met, an impossibility
for anyone who refuses treatment. N.J.S.A. 2C:47-3f; see
PRISONERS AND PAROLE, this digest.
If the examination reveals that the offender is either not
repetitive and compulsive or not amenable to sex offender
treatment, the offender may be given an ordinary sentence.
However, the sentence may not be reduced by good or
work time credits. N.J.S.A. 2C:47-3d.
The provisions of this Chapter apply to female sexual
offenders the same as they do to a male offender. N.J.S.A.
2C:47-4.2.
B. Sentence and Punishment
- In General
Before accepting a guilty plea to sexual offenses, the
trial court should satisfy itself that defendant understands
the possibility of an ADTC sentence and the impact such
sentence might have on parol opportunities. State v.
Howard, 110 N.J. 113 (1988), rev’g, 213 N.J. Super. 587
(App. Div. 1986); see PRISONERS AND PAROLE, this
digest. However, this rule is retroactive only as to cases
pending at the time of the Howard decision where the
defendant had not exhausted all avenues of direct review.
State v. D.D.M., 140 N.J. 83 (1995); State v. Lark, 117 N.J.
331 (1989).Where the State agrees not to speak at sentencing as
part of a plea bargain to second degree sexual assault, the
State is not permitted to appeal the sentence imposed as
being too lenient. State v. Paterna, 195 N.J. Super. 124
(App. Div. 1984).When sentenced as a sex-offender under N.J.S.A.
2C:47-3b or f, the length of the sentence must be set in
accordance with the Code-mandated procedure of
weighing aggravating and mitigating factors. N.J.S.A.
2C:47-3c; see Gerald v. Commissioner, N.J. Dept. of Corr.,
102 N.J. 435 (1986). Periods of parole ineligibility,
extended terms, and consecutive sentences may also be
imposed in accordance with the Code. State v. Chapman,
95 N.J. 582 (1984); State v. Holmes, 192 N.J. Super. 458
(App. Div.), certif. denied 99 N.J. 144 (1984). For
conviction of first and second degree crimes, the
presumption of imprisonment remains. State v. Hamm,
207 N.J. Super. 40 (App. Div. 1986).A defendant convicted of a second or subsequent
offense under N.J.S.A. 2C:14-2 or N.J.S.A. 2C:14-3a, shall
be sentenced to a fixed minimum sentence of not less than
five years, unless he or she is sentenced pursuant to N.J.S.A.
2C:43-7. See N.J.S.A. 2C:14-6. The sentencing court has
no discretion to suspend a sentence or impose a non-
custodial sentence of a second or subsequent offender
under this section. Id. For the purpose of this section, a
second or subsequent offense means that defendant has
been previously convicted of a similar offense. Id. An
offense is not a second or subsequent offense unless it
occurred after the conviction of the first offense. State v.
Anderson, 186 N.J. Super. 174 (App. Div. 1982); aff’d 93
N.J. 14 (1983). If defendant is convicted simultaneously of
two offenses which occurred on separate occasions, the
enhanced penalty provisions of this section does not apply.
State v. Bowser, 272 N.J. Super. 582, 588 (Law Div. 1993).
“Subsequent” means after the second offense, in other
words, third, fourth, fifth, etc. State v. Hawk, 214 N.J.
Super. 430, 434 (App. Div. 1986), aff’d 114 N.J. 359
(1989).Aggravated sexual assault conviction merges into
kidnaping conviction. State v. Cooper, 151 N.J. 326
(1997). Endangering the welfare of a child conviction
merges into sexual assault conviction where there is no basis