RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0425-19
IN THE MATTER OF THE
COMMITMENT OF C.M.
________________________
Submitted October 7, 2020 – Decided November 9, 2021
Before Judges Fuentes and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-12-1187.
Joseph E. Krakora, Public Defender, attorney for
appellant (Nora R. Locke, Deputy Public Defender, and
Daniel F. O'Brien, Assistant Deputy Public Defender,
on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
The decision of the court was delivered by
FUENTES, P.J.A.D.
In this appeal, we are asked to determine whether a civil declaration of
incompetency made by the Law Division, Civil Part, pursuant to a verified
complaint filed under Rule 4:86-1 to -12, vitiates or supersedes the Criminal
Part's role to continue to monitor a defendant acquitted of attempted murder by
reason of insanity under N.J.S.A. 2C:4-1, as required by State v. Krol, 68 N.J.
236 (1975). The Criminal Part held the post-trial civil action did not affect its
legal obligation to conduct Krol hearings to determine whether defendant poses
a danger to the community, or to himself, and therefore commitment should
continue. We agree and affirm.
On December 23, 2013, a Passaic County grand jury returned an
indictment against defendant C.M.,1 charging him with first degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a), two counts of third degree
possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d),
fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and second
degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
Represented by counsel, defendant waived his constitutional right to trial
by jury and agreed to a bench trial before Judge Miguel de la Carrera. Defendant
asserted the affirmative defense of not guilty by reason of insanity. The trial
began on April 16, 2015. Dr. Louis B. Shlesinger, a Diplomate in Forensic
Psychology, testified that at the time defendant engaged in the conduct that
1
We use initials to identify appellant to protect the confidentiality of th ese
proceedings pursuant to Rule 1:38-3(f)(2) and N.J.S.A. 30:4-82.4.
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formed the basis for the offenses charged in the indictment, he satisfied "the
criteria of the legal standard of insanity in accordance with the M'Naghten
Rule." In a final judgment entered on September 28, 2015, Judge de la Carrera
found defendant not guilty by reason of insanity on all of the charges in the
indictment, based on the standard adopted by the Legislature in
N.J.S.A. 2C:4-1,2 which provides:
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. Insanity is an affirmative defense
which must be proved by a preponderance of the
evidence.
Judge de la Carrera thereafter followed the procedures for disposition
codified in Rule 3:19-2, and in an order entered on September 28, 2015,
committed defendant to the custody and care of the Commissioner of the
Department of Human Services (the Commissioner), "to be confined in an
appropriate institution" where he would be treated for his psychiatric condition.
The court ordered defendant "to be committed for a period of twenty (20) years,
2
"N.J.S.A. 2C:4-1 codifie[d] the common law M'Naghten test for legal insanity,
which was originally formulated in England in the 1840s." State v. Singleton,
211 N.J. 157, 174 (2012).
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which is the maximum ordinary sentence for the crime of attempted murder,"
and merged the remaining offenses.
The order also provided "defendant may apply to this [c]ourt for his
release pursuant to N.J.S.A. 2C:4-9" and directed the Commissioner to bring
defendant to the court "for regular reviews of his condition pursuant to State v.
Krol, 68 N.J. 236 (1975), the first of which shall be scheduled on January 22,
2016." To assist the court, a qualified psychiatrist or licensed psychologist shall
examined C.M. "prior to each Krol review" to enable the court to determine
whether: (1) C.M. could be released to the community without supervision, and
without posing a danger to himself or others; (2) whether C.M. could be released
to the community under supervision or conditions, without posing a danger to
himself or others; or (3) whether C.M. cannot be released "with or without
supervision" without being a danger to himself or others in the community, and
therefore must be committed to a mental health facility.
The order further directed that any findings or recommendations made by
mental health professionals concerning the suitability of C.M.'s release must be
submitted to the court in writing. Defendant cannot be administratively
discharged by the psychiatric institution selected by the Commissioner without
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the court's authorization. The Commissioner placed defendant in Greystone
Park Psychiatric Hospital (Greystone).
On July 25, 2017, the then-acting Chief Executive Officer (CEO) of
Greystone filed a verified complaint in the Chancery Division, Probate Part,
Morris County vicinage, seeking guardianship of C.M. and the appointment by
the court of a guardian who can manage C.M.'s affairs. Dr. Anthony Gotay, a
clinical psychiatrist who examined and treated C.M. at Greystone, submitted a
certification in support of this civil action. Dr. Gotay stated C.M. suffers from
Chronic Paranoid Schizophrenia, he has "very poor insight" and "very poor
judgment," and has a history of violence, which included "attacking police
officers with a knife, when his Schizophrenia was not properly treated."
According to Dr. Gotay, C.M. is not capable of managing his own
financial affairs; he is not able to think rationally or communicate in a rational
manner; he is noncompliant with medication; and is not capable of giving
informed consent to medical treatment. Dr. Gotay opined that C.M.'s clinical
prognosis is "extremely unlikely to improve." Dr. Ravi Baliga, Greystone's
Acting Chief of Psychiatry, submitted a certification dated July 11, 2017, in-line
with Dr. Gotay's psychiatric prognosis of C.M. According to Dr. Baliga, C.M.
was incapable of attending the court hearing. C.M.'s mother, C.J., submitted a
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certification expressing her wish to be appointed the legal guardian for her
"alleged mentally incapacitated" adult son. Her authority to act in this capacity
would be for the "strictly limited" purpose of "rendering assistance" to her son
in making decisions. C.J. acknowledged her role and authority would not
include assisting her son in matters involving financial obligations for his care
and treatment.
On September 12, 2017, Judge Stuart A. Minkowitz, Assignment Judge of
the Morris County vicinage, conducted a competency hearing on the petition
filed to declare C.M. "an incapacitated person, unfit and unable to govern and
manage his own affairs." In an order dated that same day, Judge Minkowitz
appointed C.J. as the plenary guardian of her son's person and property.
On September 12, 2018, C.M filed a motion to terminate his Krol status
on the grounds that he has been declared legally incapacitated by the civil court.
The Passaic County Prosecutor’s Office responded in opposition. The matter
came for oral argument before Judge de la Carrera on April 18, 2019. Counsel
for C.M. conceded C.M. was competent at the time he was tried on the charges
reflected in the indictment and asserted the affirmative defense of not guilty by
reason of insanity under N.J.S.A. 2C:4-1. Defense counsel argued, however, the
question before Judge de la Carrera now was "what is the legal nature of his
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competency, because one can be incompetent and still be dangerous and still be
civilly committed. There are people who have guardians who are civilly
committed, but it’s outside of the Krol context and those individuals are looked
after by their guardians."
Defense counsel argued that C.M. was no longer under the Krol standard
of review; C.M. can be evaluated for dangerousness under his incompetency
status and committed for treatment, if necessary, by his court-appointed
guardian, his mother. This prompted the following colloquy:
THE COURT: -- it means that that person would then
be in many ways the ultimate determinant of what
should happen with him, not the [c]riminal [c]ourt,
which is the one that placed him in this status.
DEFENSE COUNSEL: That’s correct, but the [c]ivil
[c]ourt would still have jurisdiction over him,
according to [N.J.S.A.] 3B:12-36, the [c]ourt has the
authority over an incompetent person with respect to all
matters, and pursuant to [N.J.S.A.] 3B:12-49, the
[c]ourt appoints a guardian to exercise these powers on
behalf of the [c]ourt.
The guardian must act in the best interests of the
individual. The guardian is given tremendous power
over the [ward] to act in the best interest, and
specifically [N.J.S.A.] 3B:12-48 . . . or I'm sorry,
[N.J.S.A. 3B:]12-57[(f)], determined place of abode
and medical decisions, informed decisions which are
usually in -- determined in a conditional release.
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The Assistant Prosecutor who appeared for the State in these proceedings
opted not to participate in oral argument and rested on the brief. Although Judge
de la Carrera expressed concerns about the approach suggested by defense
counsel, he reserved making a final decision.
On May 10, 2019, Judge de la Carrera denied C.M.'s motion to terminate
his Krol status. The judge explained his ruling in an oral decision delivered
from the bench. He also denied C.M.'s application for a stay pending appeal.
Judge de la Carrera provided the following explanation in support of his ultimate
ruling:
No conflict of any kind was created [by] Judge
Minkowitz's appointment of a guardian for . . .
[d]efendant. This [c]ourt fully agrees with the State’s
argument.
The notion that . . . [d]efendant’s having a more
diminished capacity than he did when he was
adjudicated [not guilty by reason of insanity] and that
any further reviews of his status should be reviewed
only in a civil commitment context without
prosecutorial input and all the rest of what is involved
in Krol review strikes this [c]ourt as utterly baseless as
a matter of law.
....
I am confident that Judge Minkowitz, a fellow [t]rial
[j]udge, albeit an Assignment Judge, did not believe
that he was vitiating . . . [d]efendant's Krol status in any
way by appointing [C.M.'s] mother to be his guardian
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so that she -- so that she could advocate for him on
appropriate matters where . . . [d]efendant might not be
able to argue for himself. . . .
[D]efendant need not maintain competence throughout
his Krol status as [d]efendant argues. That he would
receive potentially significantly less supervision
because his condition worsened a few years after his
placement in Krol status would be an absurd result.
It would entirely defeat the purpose of Krol, which is to
assure the safety of . . . [d]efendant and the community
by keeping him under appropriate committed
supervision until and unless there is . . . credible
evidence presented to the [c]ourt that . . . [d]efendant is
no longer a danger to himself or the community. No
such showing has been made. Defendant's motion[,]
therefore, is denied.
Against this factual backdrop, C.M. appeals raising the following
arguments:
POINT I
[C.M.] Lacks Sufficient Capacity To Remain on Krol
Status and Because He Can Neither Comprehend [the]
Proceeding or Maintain an Attorney Client
Relationship and Accordingly His Status Should Be
Terminated.
POINT II
The Standard of Review of the Lower Court's Denial of
the Motion to Terminate Krol Status of C.M. is De
Novo Because it is an Interpretation of Law and
Therefore Not Entitled to Special Deference (Not
Raised Below).
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We reject these arguments and affirm substantially for the reasons
expressed by Judge de la Carrera. We add only the following brief comments.
The Supreme Court recently reaffirmed:
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).
[State v. Gorthy, 226 N.J. 516, 533 (2016).]
A declaration of civil incompetency and the appointment of a guardian by
a civil court to manage defendant's affairs does not address the statutory
standards codified in N.J.S.A. 2C:4-8(b). A Criminal Part judge must conduct
a Krol hearing governed by these statutory standards. Furthermore, in a Krol
review hearing, the State has the burden to show there has been no material
change in C.M.'s condition or potential dangerousness. Matter of Commitment
of J.L.J., 196 N.J. Super. 34, 46-47 (App. Div. 1984).
Affirmed.
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