NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1400-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EXAMPLIAR EXANTUS,
Defendant-Appellant.
__________________________
Submitted September 16, 2019 –
Decided August 25, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-01-0281.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Walter Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Exampliar Exantus appeals from a judgment of conviction that
was entered after a jury found him guilty on four counts of fourth-degree bias
intimidation, N.J.S.A. 2C:16-1. On appeal, defendant argues the trial court
abused its discretion in denying his request for an adjournment for the purpose
of procuring expert psychiatric testimony to support a defense of diminished
capacity pursuant to N.J.S.A. 2C:4-2. After reviewing the record before us, and
in light of the applicable law, we affirm.
We discern the following facts from the record. This case stems from a
string of alleged bias intimidation incidents that occurred between April 2013
and August 2015. On August 12, 2013, West Orange Police Sergeant Dennis
McCole met with the victim and his mother after being dispatched to their
apartment regarding a complaint of harassment. They resided next door to
defendant. The victim's mother showed the sergeant a video she had recorded
on her cellphone documenting the encounter. Defendant can be heard on the
video shouting, "[j]ust like a pig greasy faggot, Spanish shithead, greasy faggot;
Spanish shithead, greasy faggot; Spanish shithead, greasy faggot . . . greasy
faggot just like a pig; Spanish shit; get out of the way from faggot; stay in your
fucking territory greasy." According to the victim, defendant had also yelled
similar statements directed at the victim on April 12, 13, 18 and 19, 2013. On
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2
August 17, 2013, McCole was once again dispatched to complainants'
apartment, and he and his partner heard a male voice yelling "you Spanish greasy
faggot," which appeared to be coming from defendant's apartment. The officers
then observed defendant yelling while leaning out of his apartment window.
Upon seeing the officers, defendant retreated into his apartment and closed the
window. The officers then arrested defendant as he was exiting through the
front of the apartment building.
From the limited record before us, it is unclear how the issue of
defendant’s mental health came before the court. What is clear is that on May
28, 2015, a pretrial judge entered an order directing that defendant be evaluated
by a qualified psychiatrist or licensed psychologist to determine whether
hospitalization was clinically necessary to perform an examination for
defendant's fitness to proceed to trial. After defendant failed to cooperate in
attending the court-ordered examination, the judge entered a September 14,
2015 order compelling defendant to appear at his attorney's office on September
29, 2015, for an examination or face a contempt order and remand until he
complied.
Defendant complied with the order and on September 29, 2015, Peter D.
Paul, Ph.D. evaluated defendant for the purpose of determining defendant’s
A-1400-17T4
3
competency. By way of social history, defendant indicated that he had obtained
a degree in electrical engineering technology from the New Jersey Institute of
Technology (NJIT) in 1998, but was currently working as a server. 1 He
informed the doctor that he chose not to pursue a career in engineering so that
he was left more time to pursue his spiritual interests. In that regard, defendant
indicated he was an ordained minister of the Jehovah's Witnesses. By way of
medical background, although defendant did not provide the doctor with any
medical records, defendant supplied him with a detailed history of his past
medical treatment that was consistent with the records provided by defense
counsel to the judge.2
1
Defendant initially attended Rutgers University working towards a degree in
electrical engineering but, finding the curriculum "too difficult," dropped out
and next attended DeVry Institute, ultimately finishing his studies at NJIT.
2
According to the records submitted to the judge, defendant had a history of
sporadic psychiatric hospitalizations. On February 6, 1996, defendant was
admitted to Saint Barnabas Medical Center for ten days, as the dean and school
psychologists at his college had requested that he be evaluated for paranoid and
delusional behavior. In defendant's discharge summary, the examining doctor
noted that he had initially diagnosed defendant with psychosis upon defendant's
admission, but that defendant's condition eventually improved and upon his
discharge, he "was oriented and was not suffering from either auditory/visual
hallucinations or from suicidal/homicidal ideation."
Defendant was next admitted to East Orange General Hospital (E.O.G.H.)
for two days beginning on April 28, 2011, after police had arrested defendant
A-1400-17T4
4
Dr. Paul diagnosed defendant with an unspecified personality disorder,
but found defendant fit to stand trial. Specifically, in his report Dr. Paul found
that defendant reported at the time of the evaluation, he was not taking any
prescribed medications and that he felt fine. Defendant reported that he had
been living in West Orange for about six years, and that this was where he
became involved in verbal altercations with a juvenile. He understood the
purpose of the evaluation was to rule out any mental illness. Defendant
articulated his understanding of his legal situation and the charges against him,
stating the State claimed he used a racist expression. He defended his actions
by saying "[s]omebody calls me a name, so I call them back." Defendant denied
ever hearing voices and during the examination was not distracted by internal
stimuli. His responses were "mostly relevant, coherent, and focused with no
loosening of association."
because he was combative with his family. In the corresponding discharge
summary, the examining doctor diagnosed defendant with schizophreniform
disorder, unspecified state and paranoid type schizophrenia, but also concluded
that at the time of defendant's discharge, he was not suicidal or homicidal, and
presented no danger of injury to himself or others. These reports also noted that
defendant has a history of refusing to take medications.
Defendant was again admitted to E.O.G.H. on August 17, 2013,
immediately following his arrest by police, where his examining doctor
diagnosed him as having a "mood disorder."
A-1400-17T4
5
On July 14, 2015, defendant gave timely notice of his intent to invoke a
defense of diminished capacity in accordance with N.J.S.A. 2C:4-3(a) and Rule
3:12-1. Defendant, however, never appeared for a psychological evaluation and
steadfastly informed his attorney he did not want to pursue a diminished capacity
defense.
Subsequently, on January 25, 2016, an Essex County Grand Jury returned
Indictment No. 2016-1-0281 charging defendant with eight counts of fourth-
degree bias intimidation, N.J.S.A. 2C:16-1. The indictment included one count
for the incident that prompted defendant's arrest on August 17, 2013.
Almost two years after providing notice of intent to pursue a diminished
capacity defense, and after jury selection was underway, defendant abruptly
changed his position and moved for an adjournment to procure an expert to
support a diminished capacity defense. On March 1 and 7, 2017, the trial judge
held an N.J.R.E. 104 hearing on defendant's motion for an adjournment to permit
defendant to raise the diminished capacity defense. At the March 1 hearing,
defendant's counsel argued that defendant's mental disorders rendered him
unable to form the requisite mental state for bias intimidation. The State
countered that defendant's medical history was insufficient for a diminished
capacity defense.
A-1400-17T4
6
On March 8, 2017, after allowing the parties an opportunity to brief the
issue,3 the trial judge denied defendant’s motion for an adjournment. In an oral
opinion, the judge highlighted the most recent medical report finding defendant
competent to stand trial. The trial judge noted that defendant had consistently
refused to allow his counsel to raise a diminished capacity defense, and noted
that to grant defendant's request for an adjournment at this time would "make a
mockery of the court," and that the request was otherwise a "dilatory tactic."
The judge added that at this late juncture, where the jury had already been
selected, there was also no guarantee, based on defendant's prior refusals to be
evaluated, that he would submit to a diminished capacity evaluation, or an
examination by one of the State's experts.
The judge reasoned that
especially at this point, as I indicated this matter has
been before this court, [this matter] was before another
court that had many hearings, before me at least on four
occasions and we discussed the case prior to trial.
[Raising this defense] was something that defendant
had the opportunity to engage based on the evidence
presented to the court to be examined by his own
expert, and he refused to do so.
We have completed jury selection, and at this point
frankly, based on the information that I have in front of
me; based on the conduct of the defendant, there is no
guarantee that based on his past behavior that he would,
3
At this time, the jury had already been selected and the case was ongoing.
A-1400-17T4
7
in fact, attend an appointment by his own doctor, as he
refused based on the information that was on the record
provided to the court repeatedly to do so in the past.
And there [are] no assurances that he would submit to
an examination by an expert of the State, which the
State would be entitled to.
As such, I am denying defendant's request at this
juncture.
The trial judge further noted that the Court Rules required defendant to provide
the name and information of any testifying doctor thirty days prior to trial, and
that defendant failed to do so. The judge found that the requested adjournment
was likewise improper because the length of the delay would ultimately be of
an indeterminable length, which could inconvenience the litigants in the case.
In addition, the judge found that based on her review of the exhibits
provided by defendant, a defense of diminished capacity was not self-evident.
The trial judge noted that defendant's treatment in 1996 did not address the issue
of diminished capacity and was otherwise too remote to be reliable in the instant
matter. The trial judge opined that defendant's request appeared to be a dilatory
tactic, given defendant's refusal to submit to examinations that had been
arranged by his own counsel. The trial judge added that no reports currently
supported defendant's defense, and that it was uncertain whether any supporting
A-1400-17T4
8
reports would ever exist, or whether any viable defense would even exist after
granting the requested adjournment.
The case was tried before a jury on March 8 and 9, 2017. On March 10,
2017, the jury found defendant guilty on counts one, two, seven, and eight of his
indictment. On November 3, 2017, the trial judge sentenced defendant to an
aggregate of sixty days in jail as a condition of a three-year period of probation,
imposing special conditions of mental health treatment and maintenance of
employment. On November 6, 2017, the trial judge entered a judgment of
conviction and order for commitment.
This appeal ensued. On appeal, defendant presents the following point
heading for our review:
POINT I: THE TRIAL JUDGE ERRED IN DENYING
[DEFENDANT'S] MOTION FOR AN
ADJOURNMENT TO PERMIT PSYCHIATRIC
EVIDENCE THAT HE SUFFERED FROM A
MENTAL DISEASE OR DEFECT THAT NEGATED
THE REQUISITE STATE OF MIND FOR THE
CRIME OF BIAS INTIMIDATION.
Thus, defendant solely argues that the trial judge committed reversible error by
denying his motion for an adjournment to be evaluated so he could pursue a
diminished capacity defense. Defendant requests that we reverse his convictions
A-1400-17T4
9
and remand for a new trial, directing to the trial judge ordering that defendant
be evaluated to determine if there are grounds for a diminished capacity defense.
"The granting of trial adjournments rests within the sound discretion of
the trial court. Absent an abuse of discretion, denial of a request for an
adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super.
98, 105 (App. Div. 1965). Additionally, a trial court may decline to allow a
defendant to pursue a diminished capacity defense "only when the evidence is
viewed in the light most favorable to the defendant, and still no suggestion
appears that the defendant's faculties had been so affected as to render the
defendant incapable of purposeful and knowing conduct." State v. Galloway,
133 N.J. 631, 648-49 (1993).
N.J.S.A. 2C:16-1(a) defines the crime of bias intimidation and provides,
in relevant part, 4
[a] person is guilty of the crime of bias intimidation if
he commits, attempts to commit, conspires with another
to commit, or threatens the immediate commission of
an offense specified in chapters 11 through 18 of Title
2C of the New Jersey Statutes; N.J.S.2C:33-4;
N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,
4
We note that our Supreme Court deemed N.J.S.A. 2C:16-1(a)(3) to be
unconstitutionally vague and violative of due process. See State v. Pomianek,
221 N.J. 66, 91-92 (2015).
A-1400-17T4
10
(1) with a purpose to intimidate an individual or group
of individuals because of race, color, religion, gender,
disability, sexual orientation, gender identity or
expression, national origin, or ethnicity; or
(2) knowing that the conduct constituting the offense
would cause an individual or group of individuals to be
intimidated because of race, color, religion, gender,
disability, sexual orientation, gender identity or
expression, national origin, or ethnicity[.]
Additionally, N.J.S.A. 2C:4-2 provides,
[e]vidence that the defendant suffered from a mental
disease or defect is admissible whenever it is relevant
to prove that the defendant did not have a state of mind
which is an element of the offense. In the absence of
such evidence, it may be presumed that the defendant
had no mental disease or defect which would negate a
state of mind which is an element of the offense.
Significantly, this is not a case where defendant was improperly foreclosed from
pursuing a late-presented diminished capacity defense. Cf. State v. Lambert,
275 N.J. Super. 125 (App. Div. 1994).
We agree with the trial judge that the record, including Dr. Paul's report,
does not necessarily support that defendant has a mental disease or defect that
would negate the mens rea for the offense. See Galloway, 133 N.J. at 648-49.
In that regard, at the time of defendant's competency examination, he was not
delusional and denied ever hearing voices. Dr. Paul documented that
defendant's responses were "mostly relevant, coherent, and focused with no
A-1400-17T4
11
loosening of association." Defendant described the incidents as an ongoing
dispute with the neighbor that he justified because defendant as a Haitian
immigrant had been subjected to racial taunts. Moreover, unlike the
circumstances in Galloway, the court here did not preclude defendant from
pursuing a defense of diminished capacity. Rather, for years defendant simply
and unequivocally chose not to pursue this defense, only changing his position
after trial had already commenced. For these reasons, we affirm the trial judge's
decision denying defendant's motion for an adjournment so that he could pursue
a diminished capacity defense, which the judge exercised in her sound
discretion. See Smith, 87 N.J. Super. at 105.
To the extent we have not specifically addressed any remaining arguments
raised by the parties, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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STATE OF NEW JERSEY VS. EXAMPLIAR EXANTUS (16-01-0281, ESSEX COUNTY AND STATEWIDE)
Combined Opinion