The opinion of the court was delivered by
The Appellate Division denied post-conviction relief in the reported cases of State v. Blanford, 105 N. J. Super. 56 (1969); State v. Andrews, 105 N. J. Super. 62 (1969); and State v. Horne, 105 N. J. Super. 297 (1969). It also denied post-conviction relief in the unreported case' of State v. Coleman and rejected the defendant’s appeal in the unreported case of State v. Barnes. We granted certification for the sole purpose of reviewing the scope of
In State v. Wingler, 25 N. J. 161 (1957), we upheld our Sex Offender Act though it failed to embody any express requirement for hearing prior to sentencing thereunder. However, we held that, apart from any constitutional compulsion, the trial court should submit the Menlo Park Diagnostic Center’s report to the defendant and afford to him an opportunity to be heard thereon. 25 N. J. at 179. There was nothing whatever in Wingler or in its implementing rules (R. R. 3:7-10(c); R. 3:21-3) to suggest that the contemplated hearing would be other than a traditional judicial one in which evidence is duly "received and weighed” (New Jersey State Bd. of Optometrists v. Nemitz, 21 N. J. Super. 18, 28 (App. Div. 1952)). Despite this, the practice developed in the trial courts of confining the defendant to an attack on the sufficiency of the report on its face in the light of the statutory standards (N. J. S. A. 2A:164-5); in other words, even where he challenged the accuracy and validity of the factual and conclusional assertions in the report, the State was not called upon in the trial court to present its supporting evidence, psychiatric and otherwise, with fair opportunity for cross-examination. The defendants now before us contend that such failure to afford them plenary hearings on their challenges to the Center’s reports not only disregarded their procedural rights under Wingler and its implementing rules but also deprived them of their constitutional rights under Specht v. Patterson, 386 U. S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).
In Specht the defendant was convicted for indecent liberties under a Colorado statute which carried a maximum sentence of 10 years. He was sentenced, without a full hearing, under a separate Colorado Sex Offender Act for an indeterminate term of one day to life. The Supreme
We assume, for present purposes, that Specht is not controlling and that no issue of constitutional dimension is before us; we hold nonetheless that where the defendant duly challenged the sufficiency or any material aspect of the Center’s report he was entitled, under "Wingler and its implementing rules, to be confronted with the witnesses against him, with the right to cross-examine and with the right to offer evidence on his own behalf. Wingler specifically directed that the defendant be given a copy of the Center’s report with “opportunity to be heard thereon.” 25 N. J. at 179. R. R. 3:7-9(c) repeated this language and R. 3:21-3 directed that the trial court “shall advise defendant of his opportunity to be heard thereon and shall afford him such hearing.” Any lingering doubts that Wingler and its implementing rules contemplated a hearing in the traditional judicial sense with full opportunities of confrontation, cross-examination and defense should have been
In Kunz the defendant was convicted of having purchased a stolen automobile in violation of N. J. S. A. 2A:139-1. He was sentenced to a prison term without having been afforded any opportunity to examine the presentence report upon which the trial judge had relied. On appeal, we set aside the prison term and remanded the matter for re-sentencing. We held that the defendant was entitled, prior to sentencing, to examine the presentence report and challenge matters set forth therein. On such challenge the trial judge could disregard the challenged matter and so declare. However, any challenged matter which was not being disregarded would have to be the subject of proof. The burden would be on the State to introduce its evidence supporting the challenged matter and the defendant would have the right to cross-examine and introduce evidence on his own behalf. In response to the suggestion that this would be unduly burdensome on the judicial process, we noted that in the occasional instances where the challenged matter was crucial to the sentencing process, the risk of injustice was “far too great to proceed without proof.” 55 N. J. at 146.
All of the foregoing applies with even greater force when dealing with the sentencing process under the Sex Offender Act. See State v. Wingler, supra, 25 N. J. at 178-79. That Act directs that whenever the defendant is convicted of a designated sex offense he shall be committed to the Diagnostic Center for physical and mental examination. N. J. S. A. 2A :164r-3. If, through clinical findings at the Center, it is determined that the defendant’s conduct was characterized by “a pattern of repetitive, compulsive behavior” and either “violence” or “age disparity” then the court is directed, upon recommendation of the Center, to submit the defendant to “a program of specialized treatment for his mental and physical aberrations.” N. J. S. A. 2A :16A-5.
There is no question that the matters set forth in the report of the Diagnostic Center are crucial to the sentencing process under the Sex Offender Act. See State v. Thompson, 84 N. J. Super. 173, 177 (App. Div. 1964). For is there any question that, even if it be accepted as not more burdensome, a sentence under the Sex Offender Act differs in various respects from an ordinary sentence for the substantive offense. See State v. Blanford, supra, 105 N. J. Super. at 59-60; State v. Schreffler, 63 N. J. Super. 148, 152 (App. Div. 1960). As in Kunz, where the defendant challenges the accuracy or validity of the report’s material factual or conclusional assertions on which the sentence is being based, the matter must proceed to proof beyond the report itself (cf. Phillips v. Erie Lackawanna R. R. Co., et al., 107 N. J. Super. 590 (App. Div. 1969), certif. denied, 55 N. J. 444 (1970)) with the burden on the State to introduce its supporting material evidence, psychiatric and otherwise, and the right in the defendant to cross-examine and introduce material evidence on his own behalf. See State v. Wingler, supra:
Judicial determinations that the statutory standards have been met have far-reaching consequences and may result in confinement Cor very long periods of time. Decent regard for the social and individual interests concerned requires that such determinations be made only upon careful judicial deliberation and after fair opportunity for hearing has been afforded.
25 N. J. at 181.
In pointed response to the State’s contention that plenary hearings under the Sex Offender Act would be unduly burdensome, the defendants refer to statistical materials and out-of-state practices which evidence the contrary. They note that “there were only 61 persons returned from the
In particular, the defendants submit a report dated Eebmary 24, 1970 from the Wisconsin Department of Justice which describes the Wisconsin practice since Huebner v. State, 33 Wis. 2d 505, 147 N. W. 2d 646 (1967), where the court held that a defendant may not be committed for treatment as a^sex deviate under the Wisconsin Act without a plenary hearing before the sentencing judge sitting without a jury. See Buchanan v. State, 41 Wis. 2d 460, 164 N. W. 2d 253 (1969). The report indicates that about “one-third to one-half of the defendants waive their right to a hearing”; when hearing is not waived a “state psychiatrist usually testifies and in many cases he is accompanied by a state psychologist and social worker”; and the defendant “has the right to counsel, process to compel attendance of witnesses, production of evidence, [and] examination by a doctor or psychiatrist of his own choosing. * * *” See 147 N. W. 2d at 655.
In the light of the above, no exceptional trial burdens are to be anticipated but, even if this were not so, plenary hear
Remanded for further sentencing proceedings in conformity with this opinion.
For remandment — Chief Justice Weintraub and Justices Jacobs, Ebancis, Peoctoe, Hall, Schettino and Haneman — 7.
Opposed — None.