State v. June Gorthy(075009)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. June Gorthy (a/k/a June Governale) (075009) (A-51-14)

Argued March 14, 2016 – Decided September 28, 2016

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court determines whether a trial court that has found a defendant competent to stand
trial on criminal charges may compel her to assert an insanity defense, based on the evidence presented, where she
has refused to do so.

Through persistent efforts over more than a decade, defendant June Gorthy attempted to commence a
relationship with C.L., a mental health therapist residing in New Jersey whom she met only briefly in 1998 at a
conference in California. After the conference, defendant repeatedly sent C.L. gifts, letters and phone messages,
stating that she was in love with C.L. C.L. categorically rejected these overtures. Defendant then abandoned her
home in Colorado and drove to New Jersey, where she repeatedly contacted C.L. Defendant was arrested when she
was found sitting on the floor in front of C.L.’s office. Defendant was carrying a knife, and, after a consent search
of her truck, the police found several guns, ammunition, including hollow point bullets, another knife and an axe.
Upon her release from jail, she initially complied with instructions not to contact C.L., but then resumed doing so.

Defendant was arrested again, and charged with stalking and weapons offenses. Defendant was released on
bail, and admitted to pre-trial intervention subject to conditions, including that she have no contact with C.L.
Defendant complied until the spring of 2006, when she made seventy-four calls to C.L. over a three-week period.
On November 15, 2006, defendant was charged under a superseding indictment with stalking and weapons offenses.

Defendant filed a pretrial motion challenging her competency to stand trial. After reviewing defendant’s
medical records and mental health evaluation, and questioning defendant, the trial court concluded that she was
competent. Prior to trial, defendant’s counsel served notice that defendant may assert an insanity defense, and
submitted the report of a psychiatrist who opined that defendant was psychotic and delusional at the time of the
alleged offenses. The psychiatrist further opined that, if defendant were to decide not to assert an insanity defense,
she would be doing so knowingly, but not intelligently or voluntarily.

Defendant declined to raise the insanity defense, over the objection of her attorney. The trial court held a
hearing at which the judge explained to defendant the consequences of declining to assert the defense, and of
asserting it and being acquitted by reason of insanity. Defendant continued to refuse to assert an insanity defense.
The trial court concluded that defendant’s delusional condition had limited her ability to knowingly, intelligently
and voluntarily determine whether to raise the defense, and then asserted the defense on her behalf on the stalking
charge. Defendant was found not guilty by reason of insanity on that charge, and convicted on the weapons charges.
The court entered an order of civil commitment on the stalking charge, and probation on the weapons convictions.

Defendant appealed her conviction, challenging the trial court’s decision to assert the insanity defense on
her behalf, and also raising several trial errors. The Appellate Division reversed the trial court’s judgment on the
insanity defense, and remanded for a bifurcated hearing on the insanity defense and the substantive defenses. This
Court summarily remanded for reconsideration as to the insanity defense in light of the Court’s disapproval of
bifurcated proceedings where an insanity defense is raised. On the remand, another panel of the Appellate Division,
in a published opinion, affirmed the trial court’s judgment of acquittal by reason of insanity on the stalking charge.
The panel rejected defendant’s contention that because she was found competent to stand trial, the court should have
permitted her to decline to raise the insanity defense, holding that a defendant’s determination not to raise a defense
is subject to a higher standard than that set by the competency statute. 437 N.J. Super. 339 (App. Div. 2014).

This Court granted defendant’s petition for certification. 221 N.J. 220 (2015).

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HELD: When a criminal defendant is found competent to stand trial under N.J.S.A. 2C:4-4, he or she has the
autonomy to make strategic decisions at trial, with the advice of counsel, including whether to assert the insanity
defense. Based on the trial court’s finding that defendant was competent to stand trial, and the detailed explanation
that it gave defendant of the potential benefits and risks of the insanity defense, the court should have permitted her
to decide whether to assert the defense, rather than invoking it on her behalf. We reverse the trial court’s judgment
of acquittal by reason of insanity on the stalking charge, and remand for a new competency determination and, if
appropriate, a new trial on this charge. We affirm defendant’s conviction on the weapons charges.

1. An important factor in determining whether defendant is competent to stand trial under N.J.S.A. 2C:4-4(b) is
whether defendant has the capacity to assist in his or her own defense, which turns on whether defendant’s mental
condition precludes meaningful interaction with his or her attorney regarding the pending charges and the trial.
Where, as here, a court declares a defendant competent to stand trial, the defendant is deemed capable of
understanding the basic elements of the proceeding, interacting with counsel to provide information, and making
decisions about his or her defense. (pp. 17-20)

2. The insanity defense allows the court to determine whether one with mental illness should be held criminally
responsible for his or her conduct under the standard stated in N.J.S.A. 2C:4-1. It is an affirmative defense that
defendant must specifically invoke. If the court finds that defendant lacks the ability to distinguish between right
and wrong, he or she is thereby excused from criminal culpability. If a defendant is acquitted by reason of insanity,
the available options for defendant’s disposition are set forth in N.J.S.A. 2C:4-8(b)(3). (pp. 20-21)

3. A defendant found competent to stand trial has the right to decline the insanity defense. Prior cases have set forth
the procedure that a trial court should follow in that event. In State v. Handy, 215 N.J. 334 (2013), we rejected the
bifurcated proceeding that the court prescribed in State v. Khan, 175 N.J. Super. 72, 81-82 (App. Div. 1980), when a
defendant seeks to assert both a substantive defense and the insanity defense, and held that a unitary hearing should
occur on all defenses. Accordingly, where the court is advised that the defendant does not plan to assert the insanity
defense notwithstanding evidence that could support the defense, the court should undertake a detailed colloquy at
the conclusion of the State’s case to ensure that defendant understands the ramifications of his or her decision. The
court should: explain the nature and purpose of the defense; describe generally the evidence relevant to that defense,
including expert opinion that could be used to support or counter the defense; inform the defendant of his or her
sentencing exposure in the event of a conviction; describe civil commitment and the other potential dispositions
prescribed by N.J.S.A. 2C:4-8(b); and confirm the defendant’s understanding of these matters. (pp. 21-25)

4. In this case, after finding defendant competent to stand trial and based on the defense psychiatrist’s report, the
trial court properly conducted a colloquy with defendant regarding her refusal to assert the insanity defense. The
court thereby ensured that defendant had the information that she needed to make an informed decision. The trial
court erred when it declined to respect defendant’s autonomous decision not to assert the insanity defense, and
interposed its own judgment to invoke the defense. To the extent that prior case law suggests otherwise, the Court
declines to follow it. This error warrants a new trial on the stalking charge. The Court rejects defendant’s other
claims of trial error, and affirms the judgment of the Appellate Division upholding the weapons possession
convictions. (pp. 25-32)

5. On remand, the trial court should assess defendant’s competency to stand trial under N.J.S.A. 2C:4-4, based on
current information and mental health evaluations. The court should consider, among other issues, whether
defendant’s delusionary condition, if it persists, renders her unable to participate in an adequate presentation of her
defense. If defendant is found competent to stand trial, and declines to invoke the insanity defense, the court should
advise her, at the close of the State’s case, of the defense and the consequences of her choice, and then respect the
decision that defendant makes. (pp. 27-32)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for further proceedings consistent with the Court’s opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned), join in JUSTICE PATTERSON’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-51 September Term 2014
075009

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUNE GORTHY (a/k/a JUNE
GOVERNALE),

Defendant-Appellant.

Argued March 14, 2016 – Decided September 28, 2016

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 437 N.J. Super. 339 (App. Div.
2014).

Michele A. Adubato, Designated Counsel,
argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney).

Mary R. Juliano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney).

Emily R. Anderson, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Robert Lougy, Acting
Attorney General, attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

When a criminal defendant is found competent to stand trial

under N.J.S.A. 2C:4-4, he or she has the autonomy to make

strategic decisions at trial, with the advice of counsel. Among

1
those decisions is the choice whether or not to assert the

insanity defense, which absolves a defendant of criminal

responsibility for his or her conduct, if at the time of such

conduct the defendant “was laboring under such a defect of

reason, from disease of the mind as not to know the nature and

quality of the act he was doing, or if he did know it, that he

did not know what he was doing was wrong.” N.J.S.A. 2C:4-1.

This appeal requires the Court to determine whether a trial

court that has found a defendant competent may compel that

defendant to assert the insanity defense, notwithstanding the

defendant’s decision not to raise that defense. Defendant June

Gorthy was charged with stalking and weapons offenses. The

charges arose from defendant’s persistent attempts, over more

than a decade, to contact a New Jersey woman whom she had met

only briefly and who categorically rejected defendant’s

advances. Abandoning her Colorado home, defendant drove to New

Jersey and repeatedly contacted the woman despite police

warnings to cease doing so. When defendant was arrested,

several weapons and hollow point bullets were found in her

possession.

At the request of defense counsel, the trial court

considered defendant’s competence to stand trial. Although

mental health experts agreed that defendant’s conduct stemmed

from a delusional disorder that caused her to believe that she

2
and the victim of her alleged stalking had a consensual romantic

relationship, defendant indicated that she understood basic

components of the judicial process, and the trial court found

her competent to stand trial. At trial, defendant decided to

forego the insanity defense, over the objection of her attorney.

However, the trial court concluded that by virtue of her

delusion, defendant could not knowingly, intelligently, and

voluntarily waive the insanity defense, and asserted that

defense on her behalf. Defendant was acquitted of the stalking

charge by reason of insanity, convicted of the two remaining

charges, sentenced to probation, and civilly committed.

The Appellate Division reversed the trial court’s judgment

with respect to the insanity defense, rejected defendant’s

contention that the trial court had committed evidentiary

errors, and remanded for a new trial. This Court summarily

remanded the case for reconsideration as to the insanity

defense, and, on remand, the Appellate Division affirmed the

trial court’s judgment of acquittal by reason of insanity on the

stalking charge. State v. Gorthy, 437 N.J. Super. 339, 347-48

(App. Div. 2014). We granted defendant’s petition for

certification.

We hold that in light of the trial court’s finding that

defendant was competent to stand trial, and the court’s detailed

explanation of the potential benefits and risks of the insanity

3
defense in a colloquy with defendant, the trial court should

have permitted defendant to decide whether or not to assert the

defense. However unwise defendant’s strategy may have been, it

constituted a competent defendant’s decision about the conduct

of her defense. Accordingly, we reverse the trial court’s

judgment of acquittal by reason of insanity on the stalking

charge. We remand for a new competency determination and, if

appropriate, a new trial on that charge. Because defendant’s

delusion was unrelated to her conviction for the two weapons

offenses, and the trial errors that she alleges did not deprive

her of a fair trial, we affirm her conviction for those

offenses.

I.

We summarize the facts based on the record of the pretrial

proceedings, including the mental health evaluations submitted

to the trial court and the trial record.

In 1998, defendant, then a resident of Colorado, met a New

Jersey-based therapist, C.L., at an event described as an

“intensive therapy” or “personal growth” workshop in California.

The workshop was conducted by C.L. and another mental health

professional. Following the workshop, defendant sent C.L.

gifts, which C.L. rejected. After defendant attended another

workshop conducted by C.L. in 1999, she began sending letters

and leaving phone messages for C.L., stating that she was in

4
love with C.L. and wanted to be with her. Despite C.L.’s prompt

and definitive rejection of defendant’s advances, and her

unequivocal advice that defendant needed professional help,

defendant repeatedly attempted to contact C.L. over the course

of several years.

In 2002, defendant packed her belongings in a trailer and

drove from Colorado to New Jersey. On July 8, 2002, defendant

left a voicemail for C.L. The next day, C.L. found a note from

defendant, written on a napkin, on her office door. The note

stated that defendant was in the municipality in which C.L.

maintained her office, and that defendant wanted to see C.L.

C.L. contacted the police. An officer found defendant

sitting on the floor in front of C.L.’s office. After defendant

produced a knife that she was carrying and consented to the

search of her truck, the officer found several guns, ammunition

including hollow point bullets, another knife, and an axe.

Defendant told the officer that the guns were registered in

Colorado. Defendant was arrested. When she was released a week

later, she was advised not to communicate with C.L. Five months

later, defendant resumed her attempts to contact C.L.

Defendant was arrested again. She was charged with fourth-

degree stalking, N.J.S.A. 2C:12-10(b), third-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-degree

possession of a prohibited weapon (hollow point bullets),

5
N.J.S.A. 2C:39-3(f), and fourth-degree contempt, N.J.S.A. 2C:29-

9(a). She was released on bail, and ordered not to contact C.L.

Defendant was admitted into the pretrial intervention program

(PTI), pursuant to N.J.S.A. 2C:43-12 and Rule 3:28, with two

conditions: that she refrain from any contact with C.L., and

that she participate in mental health treatment and counseling.

Defendant was compliant with her PTI conditions until the

spring of 2006, when she made seventy-four calls to C.L. in a

three-week period. Defendant was arrested after police received

a report that she was harassing pedestrians in the municipality

in which C.L. maintained an office. Officers reported that

defendant misidentified herself, using C.L.’s last name and

address.

Thereafter, defendant’s PTI status was terminated by court

order due to her violation of the imposed conditions. On

November 15, 2006, a grand jury returned a superseding

indictment for the same offenses as the original indictment

other than fourth-degree contempt, with the time period of the

stalking count expanded to include the most recent incidents.

Defendant filed a pretrial motion challenging her

competency to stand trial under N.J.S.A. 2C:4-4. After

reviewing medical records and mental health evaluations, the

trial court questioned defendant about her mental health history

and alleged offenses. Defendant insisted that C.L. had

6
initiated contact with her by appearing at locations in New

Jersey where defendant was riding her bicycle, jogging, or

driving, and stated her belief that she had been “welcome and

warmly invited” to move to New Jersey.

Defendant’s counsel referred the court to reports by mental

health professionals diagnosing defendant with schizophrenia,

paranoid type, delusional disorder, and other conditions. With

defendant interposing an “objection” to her counsel’s

statements, the attorney represented to the trial court that

defendant was incapable of assisting in her defense, and was

therefore incompetent to stand trial under N.J.S.A. 2C:4-

4(b)(2)(g). Relying on defendant’s apparent comprehension of

the trial process and the consequences of strategic decisions in

her case, the State argued that, notwithstanding her delusion,

defendant was competent to be tried.

In accordance with N.J.S.A. 2C:4-5, the trial court ordered

mental health evaluations of defendant to determine whether she

was competent, and appointed a psychiatrist, Amir Rizvi, M.D.,

and a psychologist, Nichole Waldron, Psy.D., to conduct those

evaluations. Although the mental health experts did not

precisely agree on defendant’s diagnosis, both concluded that

defendant suffered from a delusional disorder. Nonetheless,

both experts opined that defendant was competent to stand trial.

7
 After reviewing defendant’s evaluations and questioning

defendant in detail during a second hearing, the trial court

concluded that defendant was competent to stand trial. The

trial court found that defendant had “the mental capacity to

appreciate [her] presence in relation to time, place and

things[,]” as required by N.J.S.A. 2C:4-4(b)(1). The trial

court determined that defendant grasped the fact that she was

charged with a criminal offense in a court of justice, that she

understood the functions of the judge, the prosecutor, and the

jury, that she was aware that she had a lawyer who would defend

her, that she appreciated her obligations if she testified and

her right not to testify, and that she recognized the

ramifications of a guilty plea. N.J.S.A. 2C:4-4(b)(2)(a) to

(f). Without elaborating, the court referred to evidence

demonstrating defendant’s ability to participate in an adequate

presentation of her defense. N.J.S.A. 2C:4-4(b)(2)(g). The

trial court ordered that defendant follow the mental health

professionals’ recommendations regarding medication and other

treatment.

Prior to trial, defendant’s counsel served notice on the

court and the State that defendant “may assert the defense of

insanity pursuant to [N.J.S.A. 2C:4-1],” and submitted to the

trial court the report of a defense psychiatrist, Kenneth J.

Weiss, M.D. Dr. Weiss opined that, at the time of the alleged

8
offenses that gave rise to the stalking charge and defendant’s

PTI violation, defendant was “psychotic and delusional” and “did

not have the residual ability to know that she would be placing

the victim in fear of bodily injury or to know that she was

doing wrong.” Dr. Weiss explained that defendant’s mental

condition met the requirements of N.J.S.A. 2C:4-1, the New

Jersey statute governing the insanity defense, but that by

virtue of her delusion, if defendant were to decide not to

assert the insanity defense, she would do so knowingly but not

intelligently or voluntarily.

The trial court held a hearing pursuant to the Appellate

Division’s decision in State v. Khan, 175 N.J. Super. 72, 81-82

(App. Div. 1980), overruled by State v. Handy, 215 N.J. 334, 349

(2013), to assess the potential role of the insanity defense in

defendant’s trial. The court explained to defendant that if she

declined to assert the insanity defense and were convicted at

trial, she could be sentenced to a maximum of three to five

years in prison, but that if she were found not guilty by reason

of insanity, she “would not face incarceration in New Jersey

State Prison.” Citing N.J.S.A. 2C:4-8, the court explained that

in the event of defendant’s acquittal by reason of insanity, she

could be released with or without supervision or conditions, or

civilly committed, but that she “wouldn’t go back to jail[.]”

9
 Defendant objected to the assertion of the insanity

defense. She stated that her attorney had told her that “with

the insanity defense, there’s hospital time though, which is

still imprisonment.” Defendant insisted to the court that she

was not guilty of stalking, and that she had an ongoing

relationship with the alleged victim. She repeated her

contention that C.L. had invited her to New Jersey. She claimed

that C.L.’s former colleague, with whom C.L. had conducted the

workshop in 1998, had “sabotaged” her relationship with C.L.,

and suggested that the colleague, not C.L., had contacted police

about defendant.

The trial court found that the factual defense articulated

by defendant -- that she and C.L. had a consensual relationship

-- was premised on a delusion. It concluded that by virtue of

her delusional condition, which had limited her ability to form

judgments about her case, defendant was unable to knowingly,

intelligently, and voluntarily decide not to assert the insanity

defense. The court then stated its intention to assert the

insanity defense on defendant’s behalf at trial with respect to

the stalking charge.

Defendant was tried before a jury. C.L. testified about

defendant’s attempts to contact her, the steps that she took to

try to protect herself from defendant, the fear that she

experienced because of defendant’s conduct, and the disruptive

10
impact of that conduct on her career and personal life. Police

officers described defendant’s behavior during various

incidents.

Defendant testified in her own defense. She told the jury

that C.L. had invited her to New Jersey, that C.L. had

repeatedly called her, that a police officer had advised her to

attempt to contact C.L., and that C.L.’s former colleague had

sabotaged her relationship with C.L. Dr. Weiss testified about

defendant’s mental condition, in support of the insanity defense

to the stalking charge.

The jury found defendant not guilty by reason of insanity

of the stalking charge, and guilty of the two weapons charges,

possession of a prohibited weapon and unlawful possession of a

weapon.

In the wake of defendant’s acquittal by reason of insanity

on the stalking charge, the trial court held a hearing in

accordance with Rule 3:19-2, N.J.S.A. 2C:4-8, and State v. Krol,

68 N.J. 236, 257 (1975). It found that if defendant were

released without supervision or conditions, she would pose a

danger to the community and to herself. The court civilly

committed defendant to the custody of the Commissioner of the

Department of Human Services for a period not to exceed eighteen

months. Defendant was sentenced to non-custodial probation for

11
her conviction of the weapons charges, and ordered, as a

condition of probation, that she refrain from contact with C.L.

Defendant appealed her conviction. Although defendant did

not contest the trial court’s competency determination, she

disputed the trial court’s decision to assert the insanity

defense on her behalf. Defendant also raised several alleged

trial errors: that the trial court erroneously admitted

evidence regarding weapons that were found in a locked gun case

in her trailer but were not specifically charged in the

indictment, that the prosecutor had asked improper questions and

made inappropriate comments, and that the court did not respond

correctly to the jury’s questions during deliberations. An

Appellate Division panel affirmed defendant’s convictions on the

two weapons charges but remanded the stalking charge for a

bifurcated trial on defendant’s substantive defenses and

insanity defense in accordance with another panel’s decision in

Handy, supra, 215 N.J. at 597-600.

We granted the State’s petition for certification, and

remanded the case to the Appellate Division for reconsideration

in light of our decision in Handy, supra, 215 N.J. at 364.

State v. Gorthy, 216 N.J. 2 (2013). In Handy, supra, we held

that when a competent defendant asserts a substantive defense

and the insanity defense, both defenses should be determined in

a unitary proceeding. 215 N.J. at 349. We thereby disapproved

12
of a bifurcated proceeding that had been adopted by the

Appellate Division in Khan, supra, 175 N.J. Super. at 84.

On remand, another Appellate Division panel issued a

published opinion, finding that the trial court’s procedure had

conformed to Handy, and affirmed defendant’s acquittal by reason

of insanity. Gorthy, supra, 437 N.J. Super. at 347-48. Relying

on Handy, the panel rejected defendant’s contention that because

she was deemed competent to stand trial, the trial court should

have permitted her to decline to raise the insanity defense.

Id. at 342-44. The appellate panel held that the requirement

that a defendant knowingly, intelligently, and voluntarily

decide not to raise a defense sets a higher standard than does

the competency statute. Id. at 344. The panel found that

defendant’s statements to the trial court were unrelated “to any

legal issue or consequence.” Id. at 347.

We granted defendant’s petition for certification. 221

N.J. 220 (2015). We also granted the Attorney General’s motion

for leave to participate as amicus curiae.

II.

Defendant argues that the trial court improperly considered

the potential merits of her insanity defense in determining that

she could not knowingly, intelligently, and voluntarily waive

the defense. She contends that the only question is whether, at

the time of trial, the defendant is capable of rationally

13
waiving the insanity defense. Defendant asserts that she

expressed an intelligent reason for her decision to forego the

insanity defense: her fear that she would be civilly committed

if acquitted of stalking by reason of insanity, which she

characterized in her colloquy with the trial court as “hospital

time.” Defendant also contends that she was deprived of a fair

trial because of testimony about her possession of weapons other

than those involved in the charges against her, comments by the

prosecutor, and the trial court’s erroneous response to

questions posed by the jury during deliberations.

The State asserts that both findings by the trial court --

that defendant was competent to stand trial, and that she was

incapable of a knowing, voluntary, and intelligent decision not

to assert the insanity defense -- were supported by substantial

credible evidence. The State argues that a trial court’s

decision to interpose the insanity defense over a competent

defendant’s objection implicates competing concerns: society’s

interest in withholding punishment when a defendant’s mental

illness renders him or her morally blameless, and respect for a

defendant’s autonomy in the adversarial process. It contends

that had defendant been convicted of stalking after refusing to

assert the insanity defense, the result would have been unjust.

The State denies that the trial court committed errors in the

14
admission of evidence or in its response to the jury’s

questions.

The Attorney General as amicus curiae concurs with the

State that the standard by which a court assesses a defendant’s

capacity to decide not to raise the insanity defense differs

from the standard of competency, and characterizes the trial

court’s decision as a “knowing and voluntary” determination

based on the defendant’s testimony and expert opinion. The

Attorney General urges the Court to permit trial judges to

interpose the insanity defense if a criminal defendant is not

able to knowingly, intelligently, and voluntarily decide not to

raise that defense.

III.

A.

The primary question raised by defendant in this appeal is

whether the trial court properly interposed the insanity defense

on her behalf, notwithstanding its prior rejection of

defendant’s position that she was incompetent to stand trial.

In that inquiry, we review the trial court’s factual findings in

accordance with a deferential standard, disturbing them “only if

they are so clearly mistaken ‘that the interests of justice

demand intervention and correction.’” State v. Elders, 192 N.J.

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162

(1964)). Our construction of the relevant statutory provisions,

15
however, entails a de novo review of the trial court’s

determination. State v. Goodwin, 224 N.J. 102, 110 (2016)

(“Accordingly, the Appellate Division’s interpretative

conclusions are owed no deference, and we review the statute

with ‘fresh eyes.’”) (quoting Fair Share Hous. Ctr., Inc. v.

N.J. State League of Municipalities, 207 N.J. 489, 493 n.1

(2011)); see also State v. Tate, 220 N.J. 393, 405 (2015).

In a ruling that is not challenged in this appeal, the

trial court determined that defendant was competent to stand

trial, pursuant to N.J.S.A. 2C:4-4. That statute provides that

“[n]o person who lacks capacity to understand the proceedings

against him or to assist in his own defense shall be tried,

convicted or sentenced for the commission of an offense so long

as such incapacity endures.” N.J.S.A. 2C:4-4(a). The court

decides whether a competency hearing is required; there are “no

fixed or immutable signs which invariably indicate the need for

further inquiry to determine fitness to proceed.” Drope v.

Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d

103, 118 (1975); see also State v. Lambert, 275 N.J. Super. 125,

129 (App. Div. 1994) (holding “[t]he evidence necessary to

establish the requisite bona fide doubt as to a defendant’s

competence is difficult to articulate”); State v. Cecil, 260

N.J. Super. 475, 480 (App. Div. 1992) (same), certif. denied,

133 N.J. 431 (1993).

16
 In a competency proceeding, the State has the burden to

prove by a preponderance of the evidence that the defendant’s

mental condition at the time of trial does not render him or her

incompetent to stand trial. State v. McNeil, 405 N.J. Super.

39, 49 (App. Div.), certif. denied, 199 N.J. 130 (2009); State

v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007) (citing

Lambert, supra, 275 N.J. Super. at 129). The court is assisted

by evaluations by one or more mental health professionals, who

report to the court regarding the defendant’s condition and his

or her ability to understand and participate in the legal

process. N.J.S.A. 2C:4-5(a), (b).

The statute sets forth findings that the court must make in

order to find the defendant mentally competent. N.J.S.A. 2C:4-

4(b). The court determines the defendant’s “capacity to

appreciate his presence in relation to time, place and

things[,]” and his or her understanding of several aspects of

the court process. N.J.S.A. 2C:4-4(b)(1).

An important component of the inquiry is the question

whether the defendant has the capacity to assist in his or her

own defense. See N.J.S.A. 2C:4-4(a) (barring prosecution of

person lacking capacity to “assist in his own defense”);

N.J.S.A. 2C:4-4(b)(2)(g) (identifying “the ability to

participate in an adequate presentation of his defense” as

factor in competency determination). The State need not prove

17
that the defendant is capable of formulating legal strategy; as

this Court has noted, “[t]o assist in his defense of course does

not refer to legal questions involved but to such phases of a

defense as a defendant usually assists in, such as accounts of

the facts, names of witnesses, etc.” Aponte v. State, 30 N.J.

441, 453 (1959) (internal quotation marks omitted) (quoting

Lyles v. United States, 254 F.2d 725, 729 (D.C. Cir. 1957),

cert. denied, 356 U.S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067

(1958)); Khan, supra, 175 N.J. Super. at 79. Nor must the State

prove that the defendant can communicate with his counsel using

complex language. See State v. Coleman, 46 N.J. 16, 40 (1965)

(“It is well recognized that an accused may have a mental

disorder but may nevertheless understand his position and be

able to assist fully in his own defense.”), cert. denied, 383

U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966); State v.

Pugh, 117 N.J. Super. 26, 32 (App. Div. 1971) (finding defendant

competent, as he could “understand when simpler words and

sentence structure were used[,]” and no evidence suggested

“defendant could not reasonably comprehend his position and

consult with his lawyer”), certif. denied, 60 N.J. 22 (1972).

The question of a defendant’s ability to assist in his or her

defense turns on whether his or her mental condition precludes

meaningful interaction with his or her attorney with respect to

the pending charges and the trial.

18
 If the defendant is found unfit for trial, the proceedings

against him or her are suspended, subject to exceptions

identified in the statute, and the court decides whether the

defendant will be civilly committed or released, with or without

conditions. N.J.S.A. 2C:4-6(b).1

When, as here, a court declares a defendant competent to

stand trial, the defendant is deemed capable of understanding

the basic elements of the proceeding, interacting with counsel

to provide information and obtain advice, and making decisions

about his or her defense, at the time of trial. See N.J.S.A.

2C:4-4(b); State v. Harris, 181 N.J. 391, 457 (2004) (noting

defendant’s “soliloquy to the court . . . demonstrates that [he]

knew his where-abouts, the nature of the proceedings and of the

charges, and the role of the different actors”), cert. denied,

545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005);

Coleman, supra, 46 N.J. at 41 (concluding defendant’s condition

did not render him incompetent because he “understood his

1 The trial court determines whether “the defendant is so
dangerous to himself or others” that civil commitment is
warranted, or, in the alternative, “proceed[s] to determine
whether placement in an out-patient setting or release is
appropriate[.]” N.J.S.A. 2C:4-6(b). Should the defendant fail
to regain competency within three months, the court holds a
hearing to decide “whether the charges against [the defendant]
shall be dismissed with prejudice or held in abeyance.”
N.J.S.A. 2C:4-6(c).
19
situation, was able to consult intelligently with counsel, and

was able to proceed with the trial”).

B.

The defense at the heart of this case “exists . . . not to

identify the mentally ill, but rather to determine who among the

mentally ill should be held criminally responsible for their

conduct.” State v. Singleton, 211 N.J. 157, 173 (2012) (citing

State v. Sikora, 44 N.J. 453, 470 (1965)). “As the ‘standard

for determining criminal responsibility, the insanity defense

draws on principles of moral blameworthiness.’” State v.

Winder, 200 N.J. 231, 242 (2009) (quoting State v. Worlock, 117

N.J. 596, 602 (1990)). Codifying the rule of M’Naghten’s Case,

8 Eng. Rep. 719 (H.L. 1843), the Legislature prescribed the

standard for criminal insanity in N.J.S.A. 2C:4-1:

A person is not criminally responsible for
conduct if at the time of such conduct he was
laboring under such a defect of reason, from
disease of the mind as not to know the nature
and quality of the act he was doing, or if he
did know it, that he did not know what he was
doing was wrong.

The insanity defense is “an affirmative defense which must

be proved by a preponderance of the evidence.” N.J.S.A. 2C:4-1.

In order to rely on the insanity defense at trial, a defendant

must provide the State with pretrial notice of his or her

intention to assert the defense, in accordance with N.J.S.A.

2C:4-3 and Rule 3:12-1. It is, accordingly, a defense that must

20
be affirmatively invoked by the defendant if it is to play a

role at trial.

As this Court has observed, “one who meets the test for

insanity, that is, one who lacks the ability to distinguish

between right and wrong, is thereby excused from criminal

culpability.” Handy, supra, 215 N.J. at 357 (citing Worlock,

supra, 117 N.J. at 601). Following acquittal by reason of

insanity, a court may: (1) release the defendant without

supervision, if it finds that such a release would be “without

danger to the community or himself,” N.J.S.A. 2C:4-8(b)(1); (2)

release the defendant under supervision or conditions, N.J.S.A.

2C:4-8(b)(2); or (3) civilly commit the defendant if it finds

“that the defendant cannot be released with or without

supervision or conditions without posing a danger to the

community or to himself,” N.J.S.A. 2C:4-8(b)(3).

Our courts have previously considered whether a trial court

should respect or overrule a competent defendant’s decision to

forego a viable insanity defense, when the defendant suffers

from a delusionary condition at the time of trial. In Khan,

supra, the defendant, charged with the murder of a tenant at his

aunt’s home, insisted that the victim had attacked him with a

hammer and that he had shot the victim in self-defense. 175

N.J. Super. at 76. Mental health experts opined that the

defendant’s version of the shooting –– and his self-defense

21
justification –– were the product of a paranoid delusion. Id.

at 76-77. Despite that expert evidence, the defendant refused

to permit his counsel to raise the insanity defense on his

behalf. Id. at 76. The three judges who considered the

defendant’s competency at different stages disagreed as to

whether he was competent to stand trial. Id. at 77-79.

An Appellate Division panel ordered a remand for a new

competency hearing in accordance with N.J.S.A. 2C:4-4 and -6.

Id. at 77-80. The panel held that a trial court is authorized

to “raise an insanity defense sua sponte only if the defendant

is not capable of making, and has not made, an intelligent and

voluntary decision.” Id. at 81 (quoting Frendak v. United

States, 408 A.2d 364, 379 (D.C. Ct. App. 1979)). It also set

forth a procedure to be followed on remand in the event that the

defendant was held competent, yet persisted in his refusal to

assert the insanity defense, and the trial court interposed that

defense on his or her behalf. Ibid. The panel instructed trial

courts to conduct a bifurcated proceeding in that situation,

with the insanity defense imposed by the court tried first, and

the defendant’s substantive defense to be considered second, if

the jury did not acquit him or her by reason of insanity. Id.

at 84.

In Handy, supra, we rejected the bifurcated proceeding

prescribed by the Appellate Division in Khan. 215 N.J. at 349-

22
50. The appeal in Handy arose from the defendant’s acquittal by

reason of insanity of the murder of his uncle, in the first

phase of a bifurcated trial. Id. at 340, 344. A mental health

expert testified that, by virtue of a delusional disorder, the

defendant believed that the victim was one of a large group of

people who had beaten and sexually abused him in a hospital, and

that, as a result of his mental condition, the defendant did not

appreciate that his act was wrongful. Id. at 340-41, 344. We

held that when a defendant seeks to assert both a substantive

defense and the insanity defense, both defenses should be

adjudicated in a unitary trial, not a bifurcated proceeding as

envisioned by the Appellate Division panel in Khan. Id. at 349.

Although our primary focus in Handy was the appropriate

procedure for adjudicating an insanity defense and a substantive

defense, we briefly commented on the trial court’s decision to

“foist the insanity defense” on the defendant. Id. at 360. We

acknowledged the “merit in [the] general conclusion” that a

defendant has the right to decline the insanity defense. Ibid.

(citing Cecil, supra, 260 N.J. Super. at 489-90). Noting that

that the Code “does not distinguish between competence to stand

trial and competence to make other kinds of decisions relating

to one’s defense,” we prescribed “a thorough and searching

inquiry of an otherwise competent defendant concerning his or

her understanding of the nature of the right being waived and

23
the implications that flow from that choice[.]” Id. at 362

(citing State v. Crisafi, 128 N.J. 499, 509-10 (1992)).

Accordingly, in the event that the court is advised by

counsel that the defendant does not plan to assert the insanity

defense notwithstanding evidence that could support that

defense, it should undertake a detailed colloquy at the

conclusion of the State’s case in order to ensure that defendant

understands the ramifications of his or her decision.2 The court

should explain to the defendant the nature and purpose of the

defense. It should generally describe the evidence relevant to

that defense, including expert opinion that could be used to

support or counter that defense. The court should inform the

defendant of his or her sentencing exposure in the event of a

conviction. It should describe civil commitment and the other

potential dispositions that are prescribed by N.J.S.A. 2C:4-8(b)

in the event of an acquittal by reason of insanity. The court

should confirm the defendant’s understanding of the insanity

2 When, as in this case, defense counsel informs the court that
the defendant has rejected the advice of counsel to assert the
insanity defense, counsel’s representation is a strong
indication that the court should conduct a colloquy with the
defendant about the defense. There may be circumstances in
which the court determines that a colloquy is appropriate,
despite the failure of defense counsel to raise the issue before
the court. That said, we rely on defense counsel to present
this issue.
24
defense as it may affect the outcome of the trial, defendant’s

risk of incarceration and the prospect of civil commitment.

Having found the defendant to be competent and explained

the consequences of the defendant’s decision, the trial court

should respect the defendant’s independent choice. A competent

defendant is deemed capable of deciding whether or not to assert

a defense. See N.J.S.A. 2C:4-4.3 His or her decision may not

align with counsel’s considered advice. It may not represent

sound trial strategy. It constitutes, however an exercise of

the defendant’s autonomy.

Accordingly, if the trial court has made a finding of

competency, it should not interpose its own judgment for that of

the defendant, but should respect the defendant’s choice. To

the extent that our case law suggests otherwise, we decline to

follow it. See Handy, supra, 215 N.J. at 362; see also State v.

Marut, 361 N.J. Super. 431, 444-47 (App. Div. 2003), certif.

denied, 190 N.J. 256 (2007); Cecil, supra, 260 N.J. Super. at

488-90; Khan, supra, 175 N.J. Super. at 80-84.

C.

In the competency determination conducted in this case, the

trial court found that defendant understood the trial process

3 We note that a defendant’s refusal to assert the insanity
defense, without more, does not compel the conclusion that he or
she is unable to “participate in an adequate presentation of his
[or her] defense.” See N.J.S.A. 2C:4-4(b)(2)(g).
25
and the fundamental choices that she would be called upon to

make. It concluded that defendant was capable of actively

participating in her defense. Thus, before its hearing on the

insanity defense began, the court had already determined that

defendant had the capacity to understand and participate in

trial strategy, and to make decisions on her own behalf.

After finding defendant competent and receiving Dr. Weiss’s

report, the trial court properly conducted a colloquy with

defendant regarding her refusal to assert the insanity defense.4

In that colloquy, the trial court summarized Dr. Weiss’s opinion

to defendant, who disputed the expert’s findings. Defendant

asserted that although her judgment had been “somewhat impaired”

by financial concerns and alleged threats by C.L.’s colleague

when she left Colorado for New Jersey, she was not “completely

out of [her] faculties” at that time. The court advised

defendant that she might be incarcerated if convicted of the

alleged offenses, but that she would not be incarcerated for the

stalking offense if she were found not guilty of that charge by

reason of insanity. The court explained in detail the options

4The trial court did not conduct a bifurcated proceeding as
directed by the Appellate Division panel in Khan, supra, 175
N.J. Super. at 84, in which the insanity defense would be
adjudicated first and the substantive defense reached only if
the factfinder rejected that defense. The trial court tried the
case as a unitary proceeding, which was consistent with this
Court’s subsequent decision in Handy, supra, 215 N.J. at 360.
26
that would be available to it under state law, including civil

commitment and an order releasing defendant with or without

supervision and conditions, in the event of an acquittal by

reason of insanity. In short, the trial court ensured that

defendant had the information that she needed to make a decision

whether to assert or forego the insanity defense.

The trial court’s thorough explanation was reflected by

defendant’s responses to the court’s comments. Although she did

not express herself in sophisticated language or legal terms,

defendant conveyed to the court two objections to the insanity

defense: first, she did not believe that she was legally insane

at the time of her offense; and second, she wanted to avoid

civil commitment, a prospect that she equated to incarceration.

Defendant clearly understood – and rejected - her counsel’s

professional advice and the trial court’s cautionary comments.

Although defendant’s decision not to assert the insanity defense

may have been imprudent, it was nonetheless an informed exercise

of her free will.

Accordingly, the trial court erred when it declined to

respect defendant’s autonomy in the decision whether to assert

the insanity defense. That error warrants a new trial on the

stalking charge. On remand, the trial court should assess

defendant’s competency in accordance with N.J.S.A. 2C:4-4, based

on current information and mental health evaluations. The court

27
should consider, among other issues, the question whether

defendant’s delusionary condition, if it persists, renders her

unable to participate in an adequate presentation of her

defense. N.J.S.A. 2C:4-4(a), (b)(2)(g). If defendant is found

competent to stand trial, and declines to invoke the insanity

defense despite the availability of evidence to support that

defense, the court should advise defendant about the defense and

the consequences of her choice at the close of the State’s case.

IV.

Defendant contends that the trial court committed other

errors that deprived her of a fair trial and warrant the

reversal of her convictions for weapons offenses.

First, defendant contends that the trial court abused its

discretion when it admitted evidence that at the time of her

arrest, she possessed certain weapons that were not the basis

for either of her weapons charges. At trial, defendant objected

to the evidence on the ground that it violated N.J.R.E. 403,

which authorizes the exclusion of relevant evidence “if its

probative value is substantially outweighed by the risk of (a)

undue prejudice, confusion of issues, or misleading the jury or

(b) undue delay, waste of time, or needless presentation of

cumulative evidence.” After conducting a hearing pursuant to

N.J.R.E. 104, the trial court determined that the evidence was

relevant to the stalking charge, because the number and type of

28
weapons in defendant’s possession could have affected the extent

to which a reasonable person would be put in fear of bodily

injury or death. The court, however, permitted only the

testimony of an officer regarding the weapons, and barred the

admission of the actual weapons and photographs depicting them.

The Appellate Division affirmed that ruling.

We review the trial court’s evidentiary rulings for abuse

of discretion. State v. T.J.M., 220 N.J. 220, 233-34 (2015);

State v. Buda, 195 N.J. 278, 294 (2008). We concur with the

Appellate Division’s determination that the trial court properly

exercised its discretion. The disputed evidence bore a direct

nexus to defendant’s stalking charge, and accordingly was

intrinsic to one of defendant’s alleged offenses. See State v.

Rose, 206 N.J. 141, 177-78 (2011) (holding evidence intrinsic to

charged crime need only satisfy N.J.R.E. 403 and other relevancy

rules); State v. Brockington, 439 N.J. Super. 311, 325 (App.

Div. 2015) (“Since the [intrinsic] evidence is properly subject

to an analysis under N.J.R.E. 403 and meets the criteria for

admissibility under that rule, it is unnecessary to consider its

admissibility under N.J.R.E. 404(b).”). The evidence at issue

therefore satisfied the relevancy and admissibility standards of

N.J.R.E. 401 and 402, and its probative value was not

substantially outweighed by its prejudicial effect for purposes

of N.J.R.E. 403. The evidence was properly admitted.

29
 Defendant next argues that she was denied a fair trial on

her weapons offenses due to a single instance of prosecutorial

misconduct: the prosecutor’s comment, in summation, that the

gun found by police officers with defendant is “not a toy,” and

that it “gives fear, it brings about death, it can kill, it can

maim, it can destroy families.”

“[I]t is well-established that prosecuting attorneys,

within reasonable limitations, are afforded considerable leeway

in making opening statements and summations.” State v.

Wakefield, 190 N.J. 397, 443 (2007) (quoting State v. DiFrisco,

137 N.J. 434, 474 (1994)), cert. denied, 552 U.S. 1146, 128 S.

Ct. 1074, 169 L. Ed. 2d 817 (2008). “Prosecutorial misconduct

is a basis for reversal of a criminal conviction if the conduct

was so egregious that it deprived the defendant of the right to

a fair trial.” State v. Josephs, 174 N.J. 44, 124 (2002).

Generally, however, a “fleeting and isolated” remark is not

grounds for reversal. State v. Watson, 224 N.J. Super. 354, 362

(App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488

U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988). When, as

here, the defendant does not object to the prosecutor’s

statement, that statement does not warrant reversal of the

conviction unless it is “of such a nature as to have been

clearly capable of producing an unjust result.” R. 2:10-2.

30
 We agree with the Appellate Division that the prosecutor’s

comment was not so egregious as to require a new trial on her

weapons offenses. This was a single remark about the impact of

a gun on a potential victim, in a trial in which the reaction of

a reasonable person to the defendant’s conduct was directly

relevant to her stalking charge. In light of the evidence

presented regarding defendant’s possession of the weapons, the

prosecutor’s comment was not clearly capable of producing an

unjust result.

Finally, defendant contends that the trial court committed

plain error when it responded to three questions posed by the

jury, with no objection from defendant. The jury’s first

inquiry was “[w]hen did [defendant] enter the State of New

Jersey and when was she searched?” The trial court restated the

sparse information on that issue, advising the jury that C.L.

found a message from defendant stating that defendant was “here”

on July 8, 2002, and that defendant’s vehicle was searched on

July 10, 2002. Second, the jury asked, “[i]s there a grace

period to register guns in New Jersey?” The trial court

properly reread to the jury the relevant provision of the

statute governing the offense of unlawful possession of a

handgun without a permit, N.J.S.A. 2C:39-5(b). The jury also

asked, “[d]oes knowingly and willingly clause apply to

[defendant’s weapons charges]?” The trial court read to the

31
jury the relevant statutes, N.J.S.A. 2C:39-3(f) and -5(b), and

summarized the elements of each offense. In each case, the

trial court properly responded to the jury’s inquiry. See State

v. Scher, 278 N.J. Super. 249, 271 (App. Div. 1994) (noting

trial court properly repeated jury instructions in response to

jury question about relevant legal principles), certif. denied,

140 N.J. 276 (1995). The court did not commit error, much less

plain error, in responding to the jury’s questions.

V.

The judgment of the Appellate Division with respect to

defendant’s conviction for possession of a prohibited weapon and

unlawful possession of a weapon is affirmed. The judgment of

the Appellate Division, affirming the trial court’s judgment of

acquittal by reason of insanity on the charge of stalking, is

reversed, and the matter is remanded to the trial court for

further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned), join
in JUSTICE PATTERSON’s opinion.

32