Opinion
DOCKET NO. A-4743-13T1
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. R.H., Defendant-Respondent.
Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Waugh. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-03-0368. Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals from the June 9, 2014 Law Division order dismissing with prejudice an indictment which charged defendant R.H. with third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and third-degree false public alarm, N.J.S.A. 2C:33-3(a). The judge dismissed the matter because he found that continuing the prosecution against defendant, who was not likely to regain his competence to stand trial, "would constitute a constitutionally significant injury to the defendant attributable to undue delay in being brought to trial." N.J.S.A. 2C:4-6(c). Having considered the record on appeal and the applicable law, we affirm.
The State alleges that on May 6, 2010, defendant was observed ranting and raving about blowing up the New Jersey Transit train on which he was travelling. After other passengers called 9-1-1, defendant was removed and taken into custody. On May 19, 2010, he was sent to the Ann Klein Forensic Center for psychiatric screening. The records included on this appeal show that defendant, who is now fifty-one years old, has a lifetime history of severe mental illness, paranoid schizophrenia, and non-compliance with treatment, including medication.
Once considered psychiatrically stabilized by Ann Klein medical staff, defendant was returned to the Union County Jail on October 28, 2010. He was moved to the jail's medical unit in January 2011. Medical staff at the jail had him screened for commitment on January 5, 2011, but "the screening center did not commit him," according to jail records. Due to his condition, he was evaluated at the jail pursuant to court order on June 13, 2011. An inpatient evaluation was recommended and defendant was transferred to Trenton Psychiatric Hospital (Hospital) on July 21, 2011, where he has remained since.
Court-ordered periodic reviews of defendant's status have resulted in a total of six competency reports issued by staff at the Hospital since his transfer. On each occasion he was found unfit to stand trial, as well as to be a danger to himself and others.
The latest report, prepared by defendant's treating psychiatrist, Dipali Das, M.D., on May 27, 2014, also found him unfit to stand trial and a danger to himself and others. It included the following:
[Defendant] has been admitted to [the Hospital] since 07/21/11 without any significant improvement.Das, who had treated defendant since December 3, 2012, was able to convince defendant to try new dosages and new medications on one occasion, but the experiment made his symptoms worsen. He was returned to his former regimen. At present, defendant adamantly rejects any proposal to experiment with different dosages or different drugs.
Based on current evaluation, it is my professional opinion that it is unlikely that [defendant] will regain his fitness in the foreseeable future because of mental illness as evidenced by delusional thinking, paranoid ideation, disorganized thought process and behavior. He appeared to be responding to internal stimuli at times. His concentration was poor. His insight and judgment were impaired. He is resistant to take any different antipsychotic medication.
Das testified that were the charges to be dismissed, she would immediately seek to have defendant civilly committed since he continues to be a danger to himself and others. She reiterated that to a reasonable degree of medical certainty, it was not substantially probable that defendant would regain fitness in the foreseeable future.
When examined by the prosecutor, Das agreed that no effective medication regimen had yet been developed for defendant. In order to develop appropriate adjustments to medications, a "person needs to be very, very cooperative for the follow-up[,]" which defendant was not. She also explained that if defendant were not properly medicated, his paranoid delusions would make him a danger to others.
In rendering his oral decision from the bench, the judge relied upon Das's report and testimony, and found her to be a credible witness. He discussed defendant's prior history, prior commitments, the medical reports, and evaluations. The judge found that defendant's prospects of regaining competency were "slim to none." Despite having been hospitalized and medicated for four years, defendant remained psychotic and delusional. The judge said
that if there were certain treatments that [defendant] agreed to undertake, there's a slim possibility that it could be beneficial. But if he refuses and things continue, there's no possibility. And from the track record that we have here, it doesn't look like this case is going to proceed to any further treatments because he's refusing and does not want to comply.This uncooperative conduct "fit[] within" defendant's illness.
Even if defendant were to agree to attempt a new medication regimen, his prospects of recovery remain slim. After four years in the Hospital, one of the most "restrictive" psychiatric facilities available, defendant was still unclear about judicial process and therefore incompetent to stand trial.
Defendant faced a maximum of five years on each offense, and if this was his first offense, enjoyed the presumption against incarceration. See N.J.S.A. 2C:44-1(e). The delay in prosecution likely prejudiced both the State as well as defendant. Although there was a strong public interest in the prosecution, and in justice thereby being served, defendant's due process interest was prejudiced by the delay.
Defendant lacked the fitness to proceed, was unlikely to regain such competence based on past history, had a constitutional right to a speedy trial, and had nearly maxed out his potential prison sentence. Thus after reviewing the evidence in light of the seven statutory factors, N.J.S.A. 2C:4-6(c), the judge dismissed the complaint.
On appeal, the State raises the following point for our consideration:
POINT I
THE TRIAL COURT FAILED TO CONSIDER THE PRESUMPTION AGAINST DISMISSAL AND FAILED TO FIND A CONSTITUTIONALLY SIGNIFICANT INJURY, AND THUS ERRED IN DISMISSING THE INDICTMENT WITH PREJUDICE.
The State does not question defendant's lack of competence to stand trial. Rather, the State contends that the judge misconstrued the statute by overlooking the presumption against dismissal expressed in N.J.S.A. 2C:4-6(c), and by finding a constitutionally significant injury. We do not agree.
Our review of a trial court's competency determination is "'typically, and properly, highly deferential.'" State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004) (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000)), appeal dismissed, 187 N.J. 74 (2005). We do not review the factual record to determine how we would decide the matter were we "the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). A trial court's determination on the subject of competency will be sustained if there is sufficient supporting evidence in the record. State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007).
Having found Das to be credible, the judge reasonably incorporated her professional opinion into his decision. Das readily acknowledged that changes in either the drugs administered to defendant or their dosages would possibly result in some improvement in his condition, but that had yet to occur in four years of treatment. Despite Das's concurrence that different drugs might result in a better outcome, it was unrealistic to anticipate defendant's return to competence in the foreseeable future since he was highly paranoid and highly resistant to any alteration in his medication regimen.
That the judge did not explicitly state the weight he accorded each of the seven statutory factors, or the fact that when assessed, in total they overcame the presumption against dismissal, is not fatal. His analysis of the proofs was well-supported by the record and leads to one inescapable conclusion: that the likelihood defendant would resume competence was so remote that it overcame the presumption against dismissal.
This middle-aged defendant had a lifetime history of paranoid schizophrenia. There was no suggestion of manipulation or malingering. He also had a life-long history of non-compliance with medication regimens. As the records from his commitment established, and as Das testified, the only documented prior effort at altering his medication had caused his condition to destabilize and worsen. Those two factors in combination, his lifetime history of non-compliance with medication and an unsuccessful experiment at changing it, establish that any future improvement is unlikely. A defendant under these circumstances cannot be faulted for refusing to engage in an activity which, because of his illness, he views as potentially dangerous.
Nor do we agree with the State's assertion that the judge did not identify a constitutionally significant injury to defendant's interest as a result of the delay. The impact on defendant's speedy trial right flowing from this four-year delay, with no improvement or prospect of improvement in the near future, alone satisfies the constitutionally significant injury required by the statute.
The State further asserts that there is no distinction between a commitment to the Hospital and a civil commitment. This argument does not warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant is unable to enjoy his freedom in either setting, but that does not make the restrictions similar.
In its reply brief, the State improperly raises a new argument, that the judge's decision was motivated by his misstatement of defendant's potential exposure to a term of incarceration. The State contends that defendant's potential exposure is ten years, two consecutive five-year terms, not one five-year term. Since defendant's conduct involved only one incident, this argument on its face lacks merit. Since it is improperly made, we will not discuss it further. See State v. Smith, 55 N.J. 476, 488 (1970). --------
We have considered the State's contentions in light of the record and applicable legal principles and conclude the judge did not abuse his discretion in dismissing the indictment pursuant to N.J.S.A. 2C:4-6(c). See State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (a trial judge's dismissal of an indictment is reviewed for abuse of discretion). The judge's detailed findings of fact and conclusions of law are fully supported by the record. The State's position that the judge should not have dismissed the indictment misconstrues the purpose of the statute. It is not meant to preserve criminal charges at any and all costs, but rather to do so only in a constitutionally measured and balanced fashion. This defendant, whose initial conduct was no doubt a manifestation of his illness, has not significantly improved in his four years of highly restrictive institutionalization. It is mere speculation to suggest that a change in defendant's medication regimen, if he would only cooperate, would result in his competence to stand trial.
Restoration to competence is absolutely necessary in order for the prosecution to proceed, and the State bears the burden by a preponderance of the evidence to establish competency. See Purnell, supra, 394 N.J. Super. at 47. The State also bears the burden of establishing that the trial judge abused his discretion in concluding the N.J.S.A. 2C:4-6(c) factors had been met and dismissing the indictment. The State has not met either burden.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION