addition to stating the minimum and maximum sentence
for the offense.
The retroactivity of the Howard decision was decided
in State v. Lark, 117 N.J. 331 (1989), where the Supreme
Court held that Howard’s holding applied only to the
defendant in that case and to cases pending when it was
decided, in which the defendant “has not yet exhausted all
avenues of direct review.”
If defendant objects to finding of ADTC that he falls
under the Sex Offender Act, he is entitled to hearing before
trial court. Court need only find by a preponderance of the
evidence that defendant’s conduct was characterized by a
pattern of repetitive, compulsive behavior in order to
impose Avenel sentence. State v. Howard, 110 N.J. 113,
131 (1988). See State v. Horne, 56 N.J. 372, 375 (1970).
Trial court does not have the power to direct a
defendant’s immediate transfer to Avenel or to order his
admission to the facility, out of sequence from his position
on the “waiting list.” State v. Falcone, 211 N.J. Super. 685
(App. Div. 1986).
The temporary imprisonment of a convicted sex
offender in a county jail or other correctional facility while
awaiting transfer to the ADTC does not violate a
defendant’s constitutional rights. State v. Howard, 110
N.J. 113, 132 (1988). Moreover, the delay in the service of
an Avenel sentence is not grounds for resentencing a
defendant, found to fall under the Sex Offenders Act, to an
ordinary prison term. Id. at 133.
Trial court may impose parole ineligibility term on sex
offender Sentence to ADTC. State v. Chapman, 95 N.J.
582 (1984). Defendant’s original sentence which did not
include community supervision for life pursuant to
N.J.S.A. 2C:43-6.4, for endangering the welfare of a child
by touching a child’s breasts, was illegal and the imposition
of the mandatory supervision did not violate double
jeopardy or fundamental fairness. A remand was needed,
however, to determine if defendant was advised during plea
proceedings that he was subject to lifetime supervision and,
if not, whether he would have pleaded guilty even if
properly advised. State v. Horton, 331 N.J. Super. 92 (App.
Div. 2000).
In State v. Anderson, 186 N.J. Super. 174 (App. Div.
1982), aff’d o.b. 93 N.J. 14 (1983), the court held that the
enhanced penalty provision of N.J.S.A. 2C:14-6 does not
apply to simultaneous convictions of separate sex offenses.
In order to impose the mandatory extended term, the
second or subsequent offense must follow the first offense
chronologically and the subsequent offense must occur
after there has been a conviction on the prior offense. State
v. Haliski, 140 N.J. 1, 10 (1995); State v. Anderson, 186
N.J. Super. at 175.