I dissent from the order, because it is, or appears to be, a decision on the merits, and this Court has not had adequate time to deliberate on the merits of the case.
Levin, J.This Court granted an interlocutory appeal to decide whether a criminal prosecution may be brought against a person committed as a criminal sexual psychopath and released 19 years later because the statute was declared unconstitutional. That question may be dispositive of this case and should be resolved before it proceeds to trial.
Our order granting leave to appeal limited consideration to the issues raised by defendant-appellant in his application. After the application was filed, in Breed v Jones, 421 US 519; 95 S Ct 1779; 44 L Ed 2d 346 (1975), the United States Supreme Court held that criminal prosecution of a person for conduct for which a juvenile *956court adjudicatory hearing had been held violated the Double Jeopardy Clause. This case, where defendant’s alleged criminal conduct was the basis for his commitment under the criminal sexual psychopath statute, appears analogous.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, Stephen M. Wheeler, Chief of Appellate Division, for the people. Robert A. Burt and Francis A. Allen for defendant-appellant.It is now over 22 years since the crime was committed. We should dispose of questions whether the people may proceed at all before requiring the defendant to litigate and the trial court to resolve issues that may not be dispositive.