State of New Jersey v. M.M.

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NOT FOR PUBLICATION WITHOUT THE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-3875-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.M.,

Defendant-Appellant.
_________________________

Submitted January 29, 2024 – Decided March 13, 2024

Before Judges Chase and Vinci.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-07-0761.

Robert C. Pierce, attorney for appellant.

William A. Daniel, Union County Prosecutor, attorney
for respondent (Michele C. Buckley, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant M.M.1 appeals from the trial court's August 15, 2023 order

denying his motion to be discharged from Krol2 status and ordering his

caregivers to begin the discharge planning process from Greystone Park

Psychiatric Hospital ("Greystone"). We affirm.

I.

We summarize the facts and procedural history most pertinent to this

appeal from the record. In January 2011, while wielding a tomahawk and knife,

defendant gravely injured two women and brutally attacked the neighbor who

came to their rescue. At his original trial, defendant advanced the theory that

during the incident he was under the influence of then-legal synthetic marijuana

to the extent that he was pathologically intoxicated, and his use of the drug

triggered a rare substance-induced psychosis. After defendant's conviction was

reversed, on re-trial defendant raised an insanity defense and waived a jury trial.

The trial court found him not guilty by reason of insanity ("NGRI") and ordered

he be evaluated at Greystone. The trial court then entered a judgment of

acquittal and sentenced defendant to an aggregate maximum sentence of forty-

five years of Krol supervision.

1
Pursuant to Rule 1:38-3(f)(2), we use initials to preserve anonymity.
2
State v. Krol, 68 N.J. 236 (1975).
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 Defendant was continued on commitment status at his initial Krol hearing.

Before his summer 2023 periodic review, defendant moved for discharge from

Krol supervision. Both the State and defendant presented expert testimony at

the hearing.

Defendant's psychiatrist, who evaluated him for approximately six months

at Greystone, testified on behalf of the State. He was qualified as an expert in

psychiatry. He believes defendant suffers from cannabis and synthetic

marijuana use disorder with psychotic symptoms (currently in remission). He

testified defendant was on the least restrictive level at Greystone and had no

problems with his behavior. He opined if defendant was released to an

unsupervised setting and started using drugs again, it could lead to another

psychotic decompensation. He recommended continuation on Krol status and

the commencement of discharge planning. 3 Although the State's expert did not

review all the testimony from the jury trial and was unaware that defendant's

girlfriend testified defendant had decompensation issues before using the

3
At the Krol hearing on February 21, 2024, defendant was conditionally
discharged from inpatient treatment and confinement at Greystone to the care of
his father in Montana. Both parties agree defendant's appeal is not moot because
he contends he should have been permanently discharged from Krol status.
A-3875-22
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synthetic marijuana, the court accepted the opinion for "the purpose of this

decision."

The court recognized defendant's expert in psychiatry. He evaluated

defendant on two occasions, first in December 2011 and more recently in July

2023, to determine whether defendant demonstrated any symptoms of mental

illness. The expert first testified to the December 2011 evaluation, where he

found defendant did not demonstrate any symptoms of mental illness, and he did

not find defendant to be a danger to himself or others. He noted this evaluation

took place eleven months after the incident occurred, but at the time of the

evaluation no such symptoms were present.

Defendant's expert then explained the concept of synthetic cannabinoid-

induced psychotic disorder. He opined defendant suffered from this disorder

and concluded it was "within reasonable medical certainty . . . the condition that

[defendant] had [at the time of the incident]." He further found defendant

acquired those symptoms involuntarily, "even though his using [synthetic

cannabis] was seemingly voluntary."

Defendant's expert then testified to the July 2023 evaluation. His report

from this evaluation indicated defendant was able to exhibit normal, coherent

behavior, and was in full command of both his physical and cognitive abilities.

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He further testified his evaluation did not reveal any "delusional ideas and/or

hallucinations," and any of defendant's previously observed symptoms were

drug-induced.

The expert referred to defendant's prior testimony where he gave insight

into his behavior as it related to substance abuse and explained psychiatrists in

his field place significant weight on an individual's insight into their own

substance abuse because it demonstrates the ability to draw "cause and effect

connections . . . between behavior that they had and an underlying problem."

He clarified while defendant's insight may not demonstrate the absence of a

psychiatric disorder, it does demonstrate a commitment to sobriety and

concluded it was his opinion defendant does not require psychiatric care, there

are no indications defendant is a danger to himself or others, and defendant

should be permitted to return to Montana, where defendant's father resides.

On cross-examination, the State asked defendant's expert whether

statements from defendant's girlfriend describing defendant's behavior as

"bizarre and of a hallucinatory nature that predated [defendant's] use of the

cannabinoid" would cause him to alter his opinion of defendant's mental state.

He testified such statements would not change his opinion. When asked whether

knowing the State's medical expert changed his opinion upon learning this

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information would cause him to change his opinion, he again replied such

information would not change his opinion. The expert testified the information

presented in the State's hypothetical would not change his opinion because it

was "not consistent with [his] findings" and he was unwilling to consider any

new information pertaining to defendant's behavior that might otherwise

invalidate his finding of synthetic cannabinoid-induced psychotic disorder.

The trial judge addressed the defense expert's testimony, stating "I'm not

so sure that I find [him] to be credible, given his argumentative nature and

inflexibility when faced with hypothetical questions." The trial judge later ruled

he was not a credible witness and rejected his testimony because he acted more

"like an advocate than an impartial witness."

Defendant also testified on his own behalf. He recognized his use of

synthetic marijuana and blamed it for his actions. He explained he wanted to

move to Montana to live and work with his father. He testified he was willing

to follow any discharge plan put in place and had participated in substance abuse

programs and would continue to do so. Moreover, he had not had any relapse

of psychiatric symptoms. The court found defendant testified in a direct and

forthright manner.

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 The trial court held defendant had been diagnosed with cannabis use

disorder and synthetic marijuana use disorder with psychotic symptoms, which

were currently in remission. It noted defendant agreed with this diagnosis in his

testimony and understands drugs bring out a psychosis in him. Further, the court

observed in defendant's case, "drugs bring out a substantial disturbance of

thought, mood, perception, or orientation, as evidenced by his behaviors in the

underlying case." Therefore, the trial court found he suffered from a mental

illness. Additionally, the court found defendant was doing well, did not need

more intensive supervision, and should continue his progression to a less

restrictive environment. Defendant's caregivers were thus ordered to begin the

discharge process and present an appropriate plan.

On appeal defendant argues:

POINT I.

THE TRIAL COURT ERRED BY DENYING
[M.M.'S] MOTION TO BE DISCHARGED FROM
KROL SUPERVISION AS THE STATE DID NOT
PROVE THAT HE IS A DANGER TO HIMSELF,
OTHERS OR PROPERTY.

II.

We are guided by well-settled principles of law governing NGRI

acquittees. Such persons "may be held in continued confinement if the person

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is a danger to self or others and is in need of medical treatment." In re W.K.,

159 N.J. 1, 2 (1999). The purpose is not to punish, but "to protect society against

individuals who, through no culpable fault of their own, pose a threat to public

safety." Krol, 68 N.J. at 246.

Once committed, NGRI acquittees "are reviewed on a periodic basis under

the same standards as those applied to civil commitments generally." In re

M.M.,4 377 N.J. Super. 71, 76 (App. Div. 2005), aff'd, 186 N.J. 430 (2006). One

important exception is "that the burden for establishing the need for continued

commitment is by a preponderance of the evidence, whereas in a civil

commitment proceeding it is by clear and convincing evidence." W.K., 159 N.J.

at 4; see also N.J.S.A. 2C:4-8(b)(3) (establishing preponderance of the evidence

standard of proof). "[A]n NG[R]I defendant may remain under Krol

commitment for the maximum ordinary aggregate terms that defendant would

have received if convicted of the offenses charged, taking into account the usual

principles of sentencing." W.K., 159 N.J. at 6.

"Commitment requires that there be a substantial risk of dangerous

conduct within the reasonably foreseeable future." M.M., 377 N.J. Super. at 76

(quoting Krol, 68 N.J. at 260). The focus is on whether the defendant "presently

4
Unrelated to the instant matter.
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poses a significant threat of harm, either to himself or to others." Krol, 68 N.J.

at 247; see also M.M., 377 N.J. Super. at 76. The determination of

"dangerousness" is "a legal one, not a medical one." Krol, 68 N.J. at 261. The

statutory standard incorporates those two variables: "Dangerous to self" and

"Dangerous to others or property." N.J.S.A. 30:4-27.2(h), -27.2(i).

"'Dangerous to others or property' means that by reason of mental illness

there is a substantial likelihood that the person will inflict serious bodily harm

upon another person or cause serious property damage within the reasonably

foreseeable future." N.J.S.A. 30:4-27.2(i) (emphasis added). Notably, the

statute employs three distinct concepts: "serious bodily harm," "substantial

bodily injury," and "serious physical harm."

Unavoidably, "[d]etermination of dangerousness involves prediction of

defendant's future conduct rather than mere characterization of . . . past

conduct." Krol, 68 N.J. at 260-61. Yet, a "defendant's past conduct is important

evidence as to his probable future conduct." Id. at 261. As the statute directs,

the dangerousness determination "shall take into account a person's history,

recent behavior and any recent act, threat or serious psychiatric deterioration."

N.J.S.A. 30:4-27.2(h), -27.2(i).

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 The determination requires a "delicate balancing of society's interest in

protection from harmful conduct against the individual's interest in personal

liberty and autonomy." Krol, 68 N.J. at 261. In crafting restraints to reduce the

risks an NGRI acquittee poses, "[d]oubts must be resolved in favor of protecting

the public, but the court should not, by its order, infringe upon defendant's

liberty or autonomy any more than appears reasonably necessary to accomplish

this goal." Krol, 68 N.J. at 261-62; see also State v. Ortiz, 193 N.J. 278, 292

(2008).

Also, "[o]rders, either requiring institutionalization or imposing lesser

restraints are subject to modification on grounds that [the] defendant has become

more or less dangerous than he was previously, or termination, on grounds that

he is no longer mentally ill and dangerous, on the motion of either the State or

the defendant." Krol, 68 N.J. at 263. An NGRI acquittee may be conditionally

released if the court deems it appropriate. Id. at 262. If conditionally released,

an NGRI acquittee must remain subject to periodic review by the court. Ortiz,

193 N.J. at 293.

The Court has recognized that in almost all cases where a committee has

demonstrated improvement, gradual reduction of restraints is almost always

appropriate, and sudden, complete removal of them almost never is.

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 [E]ven where the committee's condition shows marked
improvement, only the most extraordinary case would
justify modification in any manner other than by a
gradual [de-escalation] of the restraints upon the
committee's liberty. For example, where the State is
unable to justify the continuance of an order for
restrictive confinement, the outright release of the
committee into the community without the use of any
intermediate levels of restraint . . . would normally
constitute a manifestly mistaken exercise of the
reviewing court's discretion.

[State v. Fields, 77 N.J. 282, 303 (1978) (citation
omitted).]

See also In re E.D., 183 N.J. 536, 551 (2005) (favoring reductions to restraints

in gradual stages over outright release).

"[T]he scope of appellate review of such judgments will be extremely

narrow, with the utmost deference accorded the reviewing judge's determination

as to the appropriate accommodation of the competing interests of individual

liberty and societal safety in the particular case." Fields, 77 N.J. at 311. The

reviewing court has the "responsibility to canvass the record inclusive of the

expert testimony to determine whether the findings made by the trial judge were

clearly erroneous." In re J.M.B., 395 N.J. Super. 69, 90 (App. Div. 2007) (citing

In re D.C., 146 N.J. 31, 58-59, (1996), aff'd, 197 N.J. 563 (2009)). We will

modify a commitment order "only if the record reveals a clear mistake." D.C.,

146 N.J. at 58.

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 III.

Defendant challenges the court's finding that he has a mental illness and

is a danger to himself, others, or property. Specifically, defendant claims the

trial court erroneously found defendant suffers from a mental illness because he

may become psychotic if he should smoke synthetic marijuana because the

experts testified defendant does not suffer from a mental illness. Defendant also

claims the trial court failed to make a finding as to his dangerousness.

Relying on the testimony, the record, and the relevant law, the trial court

correctly found defendant does, in fact, suffer from a mental illness as defined

by N.J.S.A. 30:4-27.2(r). The trial court aptly reasoned defendant has been

diagnosed with a "cannabis use disorder and synthetic marijuana use disorder

with psychotic symptoms (currently in remission)," which fits the statutory

definition. The court observed defendant does not suffer from simple

intoxication or a transitory reaction, but rather defendant's use of drugs results

in a substantial disturbance of thought, mood, perception, or orientation, as

evidenced by his conduct in the underlying case. The court's finding is amply

supported by the record and was not an abuse of discretion.

Specifically, the State's expert diagnosed defendant with cannabis use

disorder and synthetic marijuana use disorder with psychotic symptoms. In this

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regard, he testified defendant has a substance abuse problem that leads him to

act out in a psychotic and delusional manner. Further, the trial court considered

the trial testimony and reports of previous doctors who conducted evaluations

of defendant and diagnosed him with substance-induced psychotic disorder

secondary to synthetic marijuana. In fact, it had been opined that at the time of

the offense, defendant suffered from an acute psychosis, consisting of "paranoid,

grandiose[,] and religious delusions as well as auditory hallucinations."

Accordingly, the record amply supports the trial court's finding that defendant's

drug use causes an abnormal reaction, resulting in a substantial disturbance of

defendant's thought, mood, perception, or orientation, which significantly

impairs his judgment, capacity to control his behavior, and his capacity to

perceive reality. Finally, the court relied not only on the experts' opinions, but

also on the testimony of defendant, who acknowledged his use of drugs causes

him to exhibit psychotic behavior.

Further, though the trial court did not specifically note in its opinion that

defendant is a danger to himself and others, the court accepted the report of the

State's expert, who offered the same opinion. Specifically, he noted in his report

defendant remains "a danger if he is discharged to an unsupervised setting and

if he starts using drugs again which may lead to psychotic decompensation."

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 The conclusion defendant remains a danger is also clearly supported by

the January 18, 2023 Greystone Violence Risk Assessment, wherein defendant

was found to be a moderate risk for future violence, and a high risk for serious

physical harm. Additionally, and more importantly, the Greystone risk

evaluation indicates that throughout his admission defendant exhibited traits

including "superficial charm, grandiose self-worth, pathological lying,

manipulation[,] and failure to accept responsibility for his index offense," which

may influence his ability and willingness to participate in treatment within the

community. The evaluator further believed these traits may influence

defendant's "capacity to develop therapeutic alliance, increase insight, challenge

distorted thinking, and recognize his risk for violence." The report conclusion

stated defendant's history of substance abuse, along with his belief that he does

not require psychological treatment in the community, indicated he would

benefit from the presence of external controls to supervise his engagement in

mental health and substance abuse programs. Thus, the record clearly

established defendant remains a danger to himself and others given his

continued need for substance abuse counseling and the high risk that he would

act extremely violently if he used drugs in the future. See Krol, 68 N.J. at 260-

61 (evidence of past conduct is evidential in predicting the likelihood of future

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dangerousness and evaluation of the magnitude of the risk involves

consideration of both of the likelihood of dangerous conduct and the seriousness

of the harm which may ensue if such conduct takes place); N.J.S.A. 30:4-27.2(h)

and -27.2(i).

The trial court properly relied upon the entirety of the record, includ ing

the trial testimony, opinions of experts, and relevant law, and correctly found

defendant suffers from a mental illness and is a danger to himself and others.

However, the trial court also realized discharge planning was appropriate and

ordered his caregivers to begin an appropriate discharge plan to be presented

and implemented. Defendant's current conditional discharge reflects the

appropriate course of action.

Affirmed.

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